III -  2

         1                              I N D E X

         2

         3    INSTRUCTIONS TO THE JURY

         4         (By the Court)                    4

         5

              CLOSING ARGUMENTS

         6

                   (By Mr. Stilley)                  9

         7         (By Mr. Oliver)                  11

                   (By Mr. Stilley)                 19

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         9

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                                                                    III -  3

         1             (The following proceedings were held outside the

         2    hearing of the jury on April 14, 2004 at 9:12 a.m.:)

         3             THE COURT:  Good morning.  Are you all satisfied

         4    with the instructions and verdict form?

         5             MR. STILLEY:  Yes, Your Honor, for the plaintiff.

         6             THE COURT:  Okay.

         7             MR. OLIVER:  Yes, sir.  I hope we did it to your

         8    satisfaction.

         9             THE COURT:  It looks good to me.  Fine.

        10             Now, I'm inclined to read the instructions first.

        11    That's normally the state procedure.  Many times in federal

        12    court the instructions are read last, but I'm inclined to go

        13    ahead and read these instructions in case you want to argue

        14    them or use them in some kind of way.  So that's my

        15    inclination to read these first.  Any objection to that?

        16             MR. STILLEY:  None, Your Honor.

        17             MR. OLIVER:  No, sir, I like it that way.

        18             THE COURT:  Yeah, I think it's better.  If you so

        19    desire, you can argue what they are.  Okay.  Let's bring the

        20    jury out.

        21             MR. OLIVER:  Your Honor, I'd again ask, respectfully

        22    remind the Court that maybe the Court might say something to

        23    the jury about the absence of the Fair Labor Standard Act.

        24    I'm sure both of us will mention it, but they might believe

        25    it better from Your Honor.

                                                                    III -  4

         1             THE COURT:  Yes, I'll mention it.

         2             (The following proceedings continued within the

         3    hearing of the jury:)

         4             THE COURT:  Good morning, ladies and gentlemen of

         5    the jury.  We're now going to enter the instruction and

         6    closing argument phase of this case.  And the Fair Labor

         7    Standards Act portion of the case has been resolved.  So the

         8    only remaining issue will be the plaintiff's battery claim.

         9    And so that will be what will be addressed by counsel in

        10    their argument, and that will be the remaining issue for you

        11    to make a decision upon.

        12             So the instructions:  Ladies and gentlemen of the

        13    jury, the instructions that I gave at the beginning of the

        14    trial and during the trial remain in effect.  I now give you

        15    additional instructions.  Of course you must continue to

        16    follow the instructions which were given earlier as well as

        17    those that I give now.  You must not single out some

        18    instructions and ignore others because all are equally

        19    important.  This is true even though some of those I gave at

        20    the beginning of the trial or during the trial are not

        21    repeated here.

        22             The instructions I'm giving you now are in writing

        23    and will be available to you in your jury room.  I emphasize,

        24    however, that this does not mean that they are more important

        25    than the earlier instructions.  And, again, all instructions

                                                                    III -  5

         1    whenever given and whether in writing or not must be

         2    followed.

         3             Neither in these instructions nor in any ruling,

         4    action, or remark that I have made during the course of this

         5    trial have I intended to give any opinion or suggestion as to

         6    what your verdict should be.  That is entirely up to you.  If

         7    I've occasionally made statements or asked questions, do not

         8    assume that because I made statements or asked questions that

         9    I hold any opinion on these matters.  The answers to these

        10    questions or what your verdict should be.

        11             In deciding what the facts are, you will have to

        12    decide what testimony you believe and what testimony you do

        13    not believe.  You may believe all of what a witness has said,

        14    only part of it, or none of it.  In deciding what testimony

        15    to believe, you may consider the witnesses' intelligence,

        16    their opportunity to have seen or heard the things testified

        17    about, the witness' memory, any motives the witness may have

        18    for testifying a certain way, the manner of the witness while

        19    testifying, whether the witness said something different at

        20    an earlier time, the reasonableness of the testimony, and the

        21    extent to which the testimony is consistent with any evidence

        22    that you believe.

        23             In deciding whether or not to believe a witness,

        24    keep in mind that sometimes people hear and see things

        25    differently and sometimes forget things.  You need to

                                                                    III -  6

         1    consider, therefore, whether a contradiction is an innocent

         2    misrecollection or a lapse of memory or an intentional

         3    falsehood.  And that may depend upon whether it has to do

         4    with an important fact or only a small detail.

         5             In these instructions you're told that your verdict

         6    depends on whether you find certain facts have been proved.

         7    The burden of proving a fact is upon the party whose claim or

         8    defense depends upon that fact.  The party who has the burden

         9    of proving a fact must prove it by the greater weight or

        10    preponderance of the evidence.

        11             To prove something by the greater weight or

        12    preponderance of the evidence is to prove that it is more

        13    likely true than not true.  It is determined by considering

        14    all of the evidence and deciding which evidence is more

        15    believable.  If on any issue in the case the evidence is

        16    equally balanced, you cannot find that issue has been proved.

        17    The greater weight or preponderance of the evidence is not

        18    necessarily determined by the greater number of witnesses or

        19    exhibits a party has presented.  You may have heard the term

        20    proof beyond a reasonable doubt.  That is a stricter standard

        21    which applies in criminal cases.  It does not apply in civil

        22    cases such as this.  You should, therefore, put it out of

        23    your minds.

        24             Your verdict must be for plaintiff if you believe:

        25    First -- and the only remaining defendant in this case is Bo

                                                                    III -  7

         1    Gerhardt, so let me say that also.  Your verdict must be for

         2    plaintiff if you believe defendant intentionally pushed

         3    plaintiff.  And second, defendant thereby caused a contact

         4    with the plaintiff which was offensive to plaintiff.  And

         5    third, such contact would be offensive to a reasonable

         6    person.

         7             If you find in favor of Plaintiff Jordan Blair and

         8    against Defendant Bo Gerhardt, then you must award Jordan

         9    Blair such sum as you believe will fairly and justly

        10    compensate Jordan Blair for damage you believe Jordan Blair

        11    sustained as a direct result of the occurrences mentioned in

        12    the evidence.

        13             In conducting your deliberations and returning a

        14    verdict, there's certain rules that you must follow.  First,

        15    when you go to your jury room you must select one of your

        16    members to act as your foreperson.  That person will preside

        17    over your discussions and speak for you here in court.

        18             Second, it is your duty as jurors to discuss this

        19    case with one another in your jury room.  You should try to

        20    reach agreement if you can do so without violence to

        21    individual judgment because your verdict must be unanimous.

        22             Each of you must make your own conscientious

        23    decision, but only after you have considered all of the

        24    evidence, discussed it fully with your fellow jurors, and

        25    listened to the views of your fellow jurors.  Do not be

                                                                    III -  8

         1    afraid to change your opinions if the discussion persuades

         2    you that you should, but do not come to a decision simply

         3    because the other jurors think that it is right or simply to

         4    reach a verdict.  Remember at all times that you are not

         5    partisans, you are judges, judges of the facts.  Your sole

         6    interest is to seek the truth from the evidence in the case.

         7             Third, if you need to communicate with me during

         8    your deliberations you may send a note to me through the

         9    marshal or bailiff signed by one or more of you jurors and

        10    I'll respond as soon as possible either in writing or orally

        11    here in open court.

        12             Remember that you should not tell anyone including

        13    me how your votes stand numerically.  Your verdict must be

        14    based solely on the evidence and the law which has been given

        15    in the instructions.  Your verdict must be unanimous.

        16    Nothing that I have a said or done is intended to suggest

        17    what your verdict should be.  That is entirely up to you to

        18    decide.

        19             Finally, the verdict form is the notice of the

        20    decision that you reach in the case.  And you will take this

        21    verdict -- form of verdict with you to your jury room and

        22    when each of you have agreed upon a verdict, your foreperson

        23    will fill in the verdict form, sign it, and date it and

        24    advise the marshal or bailiff that you're ready to return to

        25    the courtroom.  And you will return these -- these to the

                                                                    III -  9

         1    courtroom with any instructions or other materials that you

         2    may have.

         3             We're now going to commence with the closing

         4    arguments.  Okay.  Mr. Stilley, you ready?

         5             MR. STILLEY:  Thank you, Judge.  May it please the

         6    Court, counsel, ladies and gentlemen of the jury.  Thank you

         7    very much for your patience and kind attention in this case.

         8    I know this has taken a little bit longer than you might

         9    expect for something of this nature.  At this point in time

        10    the only surviving claim for your consideration turns on the

        11    credibility of witnesses.

        12             We've got the defendant, Bo Gerhardt, saying that he

        13    did not commit any battery.  And we've got another defendant,

        14    Drew Parrish, who says I was there and I didn't see it

        15    happen.  And we've got the plaintiff saying this happened to

        16    me.

        17             Let's think about this.  The plaintiff stated that

        18    he was slammed up against a sink and it hurt overnight.  He

        19    didn't say it injured my back and I was hurt for a long time.

        20    He didn't make a big story.  He didn't say that anybody else

        21    hit him.  If somebody was going to lie, would they make a lie

        22    of that nature with that sort of a story?  This story has all

        23    the earmarks of the truth.

        24             As a matter of fact, in order to explain, even to

        25    try to let you understand why did he ask for compensation for

                                                                    III - 10

         1    that, I allowed him to explain what's the difference between

         2    this hit and a hit that you take on the football field.  He

         3    didn't tell you, well, that was a lot harder than any of the

         4    hits I took on the football field.  He said on the football

         5    field there are rules.  And basically -- he didn't say all

         6    this, but basically what he's saying is I know what causes

         7    you to get hit.  I know how you keep from getting hit.  At

         8    Mountain Park concerning this incident of battery, I didn't

         9    know what caused me to get hit, and I didn't have any way to

        10    understand the rules.

        11             The defendants themselves say we give the parents a

        12    student handbook to the parents.  We don't give it to the

        13    students.

        14             And now, as far as physical injury, what he said was

        15    it hurt overnight.  That's all he said.  He said as far as

        16    mental and emotional distress, what that caused him to do was

        17    be fearful of anything he did because he didn't know what

        18    would cause further injury to him.

        19             And I'd respectfully submit to you that on the basis

        20    of this when you consider these competing stories that you

        21    should give credit to Jordan Blair's story and award him as

        22    the Court said fair and just compensation.  And I'm willing

        23    and more than happy to leave that to you to let you decide

        24    what is the sense of this community as to what is fair and

        25    just compensation for an injury of this nature.  Thank you so

                                                                    III - 11

         1    much for your time.

         2             MR. OLIVER:  May it please the Court.

         3             THE COURT:  Mr. Oliver.

         4             MR. OLIVER:  Ladies and gentlemen, Mr. Stilley,

         5    Mr. Blair.  The last three days the eight of you have had an

         6    opportunity to participate in something that's unique to the

         7    United States, and that's our jury system.  This the only

         8    country in the world that it had enough sense to entrust

         9    decision making to our citizens.  We have an opportunity,

        10    small opportunities to participate in our democracy.  We have

        11    an opportunity to vote.  We have an opportunity from time to

        12    time to serve in the armed forces.  We have numerous

        13    charitable opportunities.

        14             One of the opportunities that we forget about

        15    because it's an inconvenience is jury duty.  In our system,

        16    it's a system that has lasted for over 200 years, takes good

        17    citizens who by reason of their background, education, and

        18    experience bring a wealth of knowledge and we let those

        19    people, you, decide disputes.

        20             You know, they used to do this in England, each side

        21    would go out and hire a champion and the person that had the

        22    most resources, the fanciest tools, they would hire the

        23    biggest champion and get on the biggest horse, and if the

        24    defendants didn't have or the defendant didn't have that kind

        25    of money or that big horse, you know, you've all seen the

                                                                    III - 12

         1    Prince Valient movies, that's really how they did it, each

         2    champion galloped down the road on the horse, and the biggest

         3    and strongest always won.  That didn't always produce the

         4    right result.

         5             So we have a jury system, and we believe in that

         6    system.  And that's why we're here because we trust you to

         7    hear the evidence and to do what the judge has indicated is

         8    your duty, and that's to decide the facts based on what he

         9    has told you the law is.

        10             Bo in particular is grateful for your service.  I'm

        11    grateful for your service.  I'm an officer of the court.

        12    Without you we don't function.  Without you we are not a

        13    democracy.  We appreciate your time.

        14             I also understand in this case some of the

        15    difficulty you've had because you heard two days and all this

        16    stuff about Fair Labor Standards Act, which is now not for

        17    your decision.  The judge has decided that as a matter of

        18    law.  So the only thing that that evidence matters to you is

        19    as it relates to the credibility of the witnesses,

        20    particularly Drew Parrish and Bo as relates to what actually

        21    happened on October the 24th.  And then the rest of the

        22    reasons as it bears on who was telling the truth and why.

        23             You know, this lawsuit started a long time before we

        24    got here today, before you were sworn in on Monday.  Mountain

        25    Park, which employs Bo, takes troubled youth, troubled youth.

                                                                    III - 13

         1    We have a form that indicates for every potential applicant

         2    what their problems are.  We ask a series of things, what are

         3    their behavior problems, drug or alcohol, sexual activity,

         4    runaway, wrong friends, failing school, rebellion,

         5    disrespect, out of control behavior disorders.

         6             Now, what Jordan's problems were are not part of

         7    this case.  What Jordan's problems are are not part of the

         8    case.  But when his parents in the exercise of their parental

         9    judgment got worried enough to turn to the institution of

        10    last resort starting in October 19th of 2000, it was because

        11    Jordan was troubled.  It was -- it was because Jordan was in

        12    difficulty in a residential placement facility.  It was the

        13    last resort.

        14             And when his parents came on October the 20th and

        15    enrolled him, it was because of that.  They are the ones that

        16    were trying to live with him and could not.  And on October

        17    the 24th he came to Mountain Park, what his parents thought

        18    would be his choice.  And how did he describe that he came?

        19    He came in handcuffs, not handcuffs that we put on, not

        20    handcuffs his parents put on.

        21             Yet when he came he was greeted by Drew, Drew

        22    Parrish, who remembers it because of that.  He's greeted by

        23    Drew on the 24th.  Who is Drew Parrish?  Drew Parrish is a

        24    product of Mountain Park.  Three years there, junior staff,

        25    staff, is no longer employed.  He's pursuing his education at