[2013] Consequential Damages

by Joseph Hayes

  Mickey and Vern were seated at the counsel table near the front of the courtroom. No one else was there yet. Jake approached them and offered words of encouragement to Mickey, who seemed nervous and distracted. What struck Jake most was how frail he looked. As long as Jake had known him, Mickey had always looked and acted a good ten years younger than his age. Today, he looked every one of his seventy years.

  Within a few minutes, Rick walked in with Larry, who was dressed in a new but ill-fitting gray suit and clearly looked uncomfortable in it. Jake and Rick exchanged polite greetings, but nothing more. Mickey glared at Larry, who avoided looking in his direction. Jake could not tell which of them seemed more nervous.

  By nine thirty, only four other spectators had arrived. Apparently, this case was not of much interest to anyone outside the Beverly neighborhood, and even those residents were content to read the newspaper and listen to the gossip, but did not care enough to actually attend the trial. Jake knew that was the case with most lawsuits; nevertheless, he was disappointed that none of Mickey's friends or neighbors had bothered to attend to show their support.

  Jake looked up as the jury was ushered in. He studied their faces, and recognized no one, which was not surprising. In a big city like Chicago, a jury of your peers did not necessarily mean people from your own neighborhood.

  The silver-haired bailiff walked briskly into the room from the door behind the judge's desk. “All rise,” he ordered in a booming voice that required no amplification. “This court is now in session. Case number CV 10—1224, Larry Doyle versus Michael J. Quinn and Quinn's Fine Foods. The Honorable Christopher Gray presiding.”

  Judge Gray entered, robes billowing around him as he walked quickly to the bench. He was a scholarly looking man in his late forties, with dark hair, and wire-rimmed glasses. Jake had handled several matters before Judge Gray and had found him to be intelligent and fair, with a no-nonsense attitude about him. He derived some comfort from the fact that the case was in the hands of a very competent judge.

  After discussing some preliminary procedural issues with the attorneys, Judge Gray invited Rick to proceed with his opening statement. In his navy suit and yellow tie, with his perfectly coiffed hair and chiseled good looks, Jake thought he looked as much like a movie star as a trial lawyer, something that would not be lost on the eight female jurors.

  “Good morning, ladies and gentlemen,” Rick began. “I would first like to extend my sincere thanks to each of you for being here. I realize that jury duty is an inconvenience, and sometimes even a hardship, but it's a vitally important part of our judicial process and you are to be commended for being here to do your civic duty.

  “As a jury, you have a tremendous responsibility. Your job is to listen to all of the testimony and consider all of the evidence, and decide what really happened. That responsibility rests entirely with you—not with me, not with defense counsel, and not with Judge Gray. You will decide the outcome of this case.”

  Jake watched the jury closely. They were looking at Rick with rapt attention. Rick was smooth and natural, and they were certain to like him. He continued. “What you are about to hear, you will undoubtedly find disturbing. I apologize in advance for the graphic nature of the testimony you will be hearing, but in order to really understand what happened, we need to describe the facts exactly as they occurred, even though hearing that may be unpleasant and distasteful. But the reality is, what happened to my client was unpleasant and distasteful—more than that—it was despicable. It was detestable. And, it was illegal.

  “Larry Doyle worked for a grocery store owned by the defendant, Mr. Quinn. As Larry's boss, Mr. Quinn was in a position of power and authority. He abused that position. Larry will tell you, in graphic detail, how Mr. Quinn made unwelcome sexual advances toward him. Mr. Quinn propositioned Larry. He exposed himself to Larry. Larry was forced to endure inappropriate touching that no person should have to endure from his boss or anyone else. And what happened when he objected to all of this? He was fired.”

  Mickey's face turned crimson, and he seemed about to jump out of his chair, when Vern put a hand on his forearm and whispered something to him. Jake noticed that a few of the jurors were poker-faced, but most of them looked repulsed.

  Rick continued. “Fortunately, we have courts in this country to deal with such situations, and there are laws against sexual harassment and retaliation. You will undoubtedly hear that Mr. Quinn was a civic leader in his neighborhood. You will hear that he was an employer to many people over the years. Be careful not to read too much into that. Yes, he absolutely was an individual of some power and influence in his little universe. But people in positions of power sometimes abuse their positions. Think about the recent scandals involving Catholic priests. For years, unscrupulous men of the cloth were allowed to get away with the most egregious types of conduct, but finally they were held accountable—because our legal system works.

  “Listen carefully to the evidence, and the truth will be obvious to you. We don’t like to believe that our leaders, those who enjoy our trust, could betray that trust. But we've seen it happen time and time again in our society—with politicians, priests, bosses—it happens. Set aside any preconceived notions that people in positions of power and influence deserve our trust, and simply consider the evidence. All I ask is that you listen to every word with an open mind and be guided by your conscience. If you do that, you will undoubtedly conclude Mr. Doyle is telling the truth. No other explanation makes sense. Thank you in advance for doing your duty.”

  Jake felt sick. Rick came across as the picture of sincerity. It was obvious that he was connecting with this jury.

  Vern shuffled his papers and walked toward the jury, looking at the floor as he gathered his thoughts. “Good morning,” he began, without making eye contact. “Mr. Black just got through telling you that you must believe Mr. Doyle’s story because no other explanation makes sense. Well, there’s a very simple explanation that makes perfect sense—Mr. Doyle is a liar.”

  Not a great start, Jake thought. Build some rapport with the jury. Lead them to that conclusion tactfully and subtly. Lashing out may be perceived as overly defensive. Not surprisingly, several jury members seemed to bristle at such a bold and stark allegation.

  “Larry Doyle was a lousy employee. That's why he was fired. He was unreliable. He had a pattern of missing work, or coming in late. His attitude was poor, and that negative attitude resulted in rude behavior toward the store’s customers. No reasonable businessman can tolerate it when an employee antagonizes his customers. So Mr. Quinn fired him. It's that simple.

  “So why are we here? Mr. Doyle is angry, like most people are when they get fired. He wants revenge. Beyond that, he wants to play the litigation lottery. He thinks he can just come in here and tell a disgusting sounding story and that you’ll believe him. Don't let him get away with that.

  “I do agree with Mr. Black on one point,” Vern said. “Your job is to consider the evidence and decide what really happened. Mr. Doyle must prove his case. Other than his own story, he has no case. He has no witnesses, no supporting evidence, nothing. Don't let him con you with this completely unsubstantiated fish tale. It's just not true.”

  Jake cringed. Vern spoke the truth, but it was awkward from start to finish. He had difficulty finding his words. He stammered. There were long pauses. He looked mostly at the floor, with only the occasional fleeting glance at the jury. All things considered, he just wasn't very convincing, even to someone like Jake, who desperately wanted to believe him. Jake's throat was dry. The mismatch he feared was materializing at the very outset of the trial.

  As Jake expected, Rick's key witness was his first: Larry. His mission was to turn the jury against Mickey from the very start by letting Larry tell his story, painting the most graphic and disgusting picture he possibly could. Rick didn’t trust Larry to give a thorough, coherent narrative account of his claims, so he led Larry through the story with a series of short, carefully sequenced ques
tions. Through that process, Larry told the jury of three separate instances where Mickey had made sexual advances toward him.

  Larry first described an incident where Mickey called him into his office one evening after closing. His deliveries had kept him out late and everyone else had already gone home. Mickey invited Larry into his office, explaining that he wanted to give Larry something special for working late. As Larry entered the office, Mickey shut the door and dropped his trousers, saying, “Here’s your bonus. Come and get it.”

  Every person on the jury looked disgusted.

  Larry then recounted an incident that allegedly occurred at the lunch counter in the back room. According to Larry, he and Mickey were sitting side by side when Mickey spilled his coffee. Although none of it had actually landed on Larry, Mickey said “Sorry, looks like I got some on your pants,” and reached under the table with a napkin and attempted to rub it against Larry’s crotch.

  Jake noticed that several jurors were casting contemptuous glances in Mickey’s direction as the stories unfolded. They were sporadic and subtle at first, but gradually became more frequent and openly hostile.

  Finally, Rick asked Larry about his termination. “Larry, did you have an encounter with a customer by the name of Mrs. Leonard on your last day of employment?”

  “Yes. I’m afraid I lost my temper and snapped at her after she yelled at me for being late.”

  “Did you frequently lose your temper with customers?”

  “Never, until that day.”

  “What made you lose your temper on that particular occasion?”

  “I was upset. It was just before that delivery run that Mickey propositioned me for the third time. He told me that if I didn’t start showing some respect for my employer, I could start looking for another job.”

  “What did you take that to mean?”

  “I took it to mean that if I didn’t respond to his advances, I’d be fired, so I was agitated all morning. When that old lady got on my case, I just lost my cool. I shouldn’t have, but I did.”

  “What happened next?”

  “When I got back to the store, Mickey told me that Mrs. Leonard had called and complained about me. I got in his face and told him I was upset because he kept coming on to me, and that I just took it out on the wrong person. I told him that he’d better not come on to me ever again. I’d had enough and I told him so.”

  “And then what happened?”

  “He fired me.”

  “He fired you?”

  “Yes, but first he told me that he would give me one more chance. If I showed my willingness to please the boss, he’d give me another chance.”

  “And then?”

  “I refused, and he fired me.”

  “No further questions.”

  Judge Gray looked at Vern. “Your witness, Mr. Snyder.”

  Vern approached the witness, looking at the notes he had scribbled on a yellow legal pad. “Mr. Doyle, were there any witnesses to any of these events you just described?”

  “No. He was always careful to make sure we were alone.”

  “Did you tell anyone about these alleged incidents after they happened?”

  “No. I was embarrassed, and I was afraid of losing my job.”

  Good, Jake thought. Stop there, Vern. But Vern pressed on. “So you have no evidence whatsoever to support a single thing you’ve said. Why should the jury believe you?”

  “Because I’m telling the truth,” said Larry earnestly. “This is tough for me. I’ve never sued anybody. I’m intimidated by this whole legal process. Do you think I’d really just make this up out of thin air and have to go through this ordeal? I hate this, but I knew I had to speak up. If I didn’t, he’d go after some other guy, and I wouldn’t want to live with that.”

  Vern looked unsure about how to proceed. He stared blankly at Larry for a few moments and then said “No further questions.”

  Jake winced. Larry had scored points with that one.

  Rick then introduced two experts. The first was a psychologist, who testified that it would not be at all unusual for a victim to keep silent about harassment of this nature, based on a combination of embarrassment, humiliation, guilt and fear. She also testified that these events could cause lasting psychological damage in the form of self-esteem issues, which could affect Larry’s personal relationships as well as future employment prospects. Vern offered no cross-examination.

  The second expert witness was an economist, who explained the financial statements of Quinn’s Fine Foods as they were displayed on a large screen in front of the jury. The purpose of this testimony was to educate the jury about Mickey’s financial condition, so they would be in a better position to know how much it would take to inflict meaningful punishment if they concluded he was guilty. The economist explained that Quinn’s average annual revenues for the past five years exceeded three million dollars. Based on that revenue stream, he opined that the business itself was worth between five and six million as a going concern. Jake noticed that the expert failed to mention that Quinn’s actually operated at a loss during the past year, and that during the four preceding years, its net profit never exceeded $120,000. Vern noticed these points as well and addressed them during his cross-examination.

  That was Rick’s entire case. He finished by mid-afternoon. Jake was relieved that nothing new had emerged, but was disturbed by his observation that Rick seemed to have the jury clearly on his side. Now it was up to Vern and Mickey to change that.

  Vern began with his character witnesses. That struck Jake as odd. He would have put Mickey on the stand first, in an effort to get the other side of the story before the jury as early as possible.

  Vern first called Father Reichert, the pastor of St. Francis Church, who testified about Mickey’s long-time involvement in church activities, as well as his generosity with both his time and his money. Next, Vern called Tim O’Connor, the acting president of the Beverly Planning Commission, who told of Mickey’s many years of service to that organization and to the community at large. Both men portrayed Mickey as a man of the highest character and integrity. On cross-examination, both acknowledged that they had no knowledge of his relationship with Larry or how he treated his employees.

  Since it was late afternoon by the time O’Connor’s testimony had concluded, Judge Gray adjourned the proceedings for the day and informed the parties that the trial would resume at nine thirty the following morning. Jake walked out of the courtroom with Mickey and did his best to offer words of encouragement to his former boss, who appeared dazed and shell-shocked.

  As Jake arrived in the courtroom the following morning, Vern handed him that morning’s edition of the Southside Review. Splashed across the front page was the headline, “Day of Reckoning for Quinn,” and a picture of Mickey leaving the courtroom with a stunned look on his face. The story recounted the most graphic and inflammatory portions of Larry’s testimony. It described Larry as “a clean-cut young man with a respectful and sincere demeanor.” According to the article, Mickey listened to the damning testimony “in stone-faced silence, revealing no emotion or reaction whatsoever.”

  Mickey was sworn in promptly as the proceedings resumed. He bore little resemblance to the cheerful, confident man who ran around the store greeting customers and marched at the head of neighborhood parades. He seemed nervous and unsure of himself, as his eyes darted around the unfamiliar courtroom.

  Vern spent the better part of the morning leading Mickey through a series of questions about his background: his immigration to this country; his start in the grocery business; the history of Quinn’s Fine Foods; and the myriad of community activities and organizations he supported. Vern spent considerable time bringing out information about the store’s delivery business and Mickey’s commitment to serving the elderly. He had Mickey talk about the countless young people who were provided invaluable employment experience at Quinn’s.

  Jake had difficulty reading the jury during this testimony. For the most part,
they stared impassively as Mickey’s background was brought to life. Jake wondered whether they looked that way because they were skeptical and biased toward him already, or because the information was simply not very exciting.

  By late morning, Vern turned his focus to the core allegations of the case. “Mr. Quinn, would you please describe for us your relationship with Larry Doyle?”

  “He was an employee of mine at the store.”

  “Was he a good employee?”

  “No.”

  “In what way was he deficient?”

  “Lots of ways,” replied Mickey, flashing an angry look in Larry’s direction. “He had a bad attitude. He was surly to his co-workers and to our customers. He often came in late, bleary-eyed and smelling of alcohol. Sometimes he wouldn’t make it in at all. He’d call late in the morning and claim to be sick, but more likely he was hung over or just playing hooky.”

  “And as a result of these deficiencies, you ultimately terminated his employment?”

  “Correct. My patience with him had been wearing thin, and the last straw was a phone call I received from a long-time customer, complaining that he was rude and nasty to her. I can’t tolerate that in my business.”

  Jake was encouraged to see that Mickey was speaking with confidence and forcefulness now. There was anger in his voice, which was a good thing. He had every right to be angry. The jurors were sitting straight up in their seats, paying close attention. A few were taking notes.

  “Mr. Quinn …” Vern paused, struggling with how to broach this next subject. “You heard Mr. Doyle testify yesterday that there was another reason for his termination. More specifically, he claims you terminated him … because he refused to submit to … uh … uh … sexual advances you had been making toward him. What’s your response to that?”

  “It’s a bold-face lie!” Mickey shouted, glaring at Larry with clenched fists.

  “So there is no truth to—”

  “No truth whatsoever. He’s an unscrupulous scoundrel.” He stood up, shouting now, pointing at Larry. “He’s got no conscience. He’s a—”