I -  40

         1             THE COURT:  That's what we're here for, to see if

         2    your dog hunts.  See which one of these dogs will do

         3    something here.

         4             MR. STILLEY:  My dog will hunt.

         5             THE COURT:  That's what you say, but I'm going to be

         6    the judge of that.  Now, let's talk about this a little more.

         7             MR. STILLEY:  Okay.

         8             THE COURT:  How old was Mr. Blair when he first went

         9    to Mountain Park?

        10             MR. STILLEY:  He was almost 17.  He was 16 years

        11    old.

        12             THE COURT:  Okay.  And so he got a diploma from the

        13    school from which he left?

        14             MR. STILLEY:  Correct.

        15             THE COURT:  What grade was he in when he left?

        16             MR. STILLEY:  He had already completed all

        17    requirements for graduation.  And this was an ACE school,

        18    accelerated Christian education school, same as Mountain

        19    Park.  So he had completed all requirements for graduation.

        20    And let me explain this.  I think it's probably fairly

        21    obvious you can't complete all requirements for graduation

        22    without knowing that.  And if you go somewhere else, you're

        23    going to try to explain to the new school, here's what I

        24    completed, I don't need to go back.

        25             THE COURT:  Fine.  But you got a situation where his

                                                                    I -  41

         1    parents sent him here.  So now what does this tend to show,

         2    that, in fact, that unless you can tell me otherwise what you

         3    are seeming to suggest to me is that Mr. Blair had completed

         4    all his requirements to complete high school but did not have

         5    a high school diploma, and you find out later on that he did

         6    have a high school diploma and so here we are.  So now what

         7    does this tend to show in terms of employment status, student

         8    status versus student status or battery?  What does it tend

         9    to show there?  How does it tend to prove one of those things

        10    are more likely one way or the other way?

        11             MR. STILLEY:  Well, let's start with what Mountain

        12    Park says about their facility.  They say it is an academy.

        13    Mountain Park Baptist Boarding Academy, and it is nothing

        14    more than the name implies.  And when you have a diploma, you

        15    got a demonstration, certification that this person has

        16    completed secondary education.  They've completed high

        17    school.  There is no need for them to be a student.  So the

        18    logical --

        19             THE COURT:  Wait a minute, who made the

        20    determination for Mr. Blair to be there in the first place?

        21             MR. STILLEY:  The parents.

        22             THE COURT:  Now, you're trying to put this decision

        23    making on the defendants, that they made a determination of

        24    him being there.  That wasn't the case.  That's what you're

        25    telling me.  So I'm trying to see how is this relevant.  You

                                                                    I -  42

         1    seem to be suggesting somewhere in this student employee

         2    situation that it's relevant, and I'm trying to figure out

         3    how is it relevant.  I don't see it yet.

         4             MR. STILLEY:  Well, let's look at it in this way.

         5    If an individual -- let's say nobody had sent him there, he

         6    just showed up there.

         7             THE COURT:  Well, he didn't show up there.

         8             MR. STILLEY:  Well, I understand that.

         9             THE COURT:  That didn't happen.

        10             MR. STILLEY:  A person who has a high school diploma

        11    is more likely -- when they are forced to do work, it's more

        12    like a work situation than educational situation, especially

        13    when the facility says we don't do anything but secondary

        14    education, 9 through 12.  That's all their business is.  And

        15    when that has been completed --

        16             THE COURT:  I'm excluding that.  That's that.

        17             MR. STILLEY:  Are you excluding evidence that he had

        18    a high school diploma?

        19             THE COURT:  Yes, I'm excluding that unless it's in

        20    rebuttal unless it has something to do relative to what the

        21    defendants put on because that has nothing to do with how he

        22    got there, and you're telling me it had something to do with

        23    the level of work that he could get otherwise.  We got people

        24    with Harvard law degrees working as greeters at Wal-Marts in

        25    St. Louis, please.

                                                                    I -  43

         1             MR. STILLEY:  They're still entitled to minimum

         2    wage.  They are entitled to a minimum wage.  And that's all

         3    he's asking for is minimum wage and overtime.

         4             THE COURT:  Fine.  What has this got to do with

         5    whether or not he is entitled to minimum wage?

         6             MR. STILLEY:  It militates in favor of the employee

         7    relationship instead of student relationship.  Suppose the

         8    defendants can show he was just in fifth grade level work, he

         9    needed to be educated.  That makes it look like he's a

        10    student.

        11             THE COURT:  We don't want to get into whether or not

        12    he just got these social promotions.  I don't know what his

        13    educational level is.

        14             MR. STILLEY:  Well, it's not about social promotion.

        15    It is about whether or not he had a high school diploma,

        16    whether or not he had completed requirements of high school

        17    education.  And that militates very much against a student

        18    status or a status of just the defendants were just trying to

        19    teach him things about work.  It's not teaching about work,

        20    it's making him work.  It's making him work at their

        21    enterprises.  And I think it would be just very unfair not to

        22    allow him to show he had completed all requirements of

        23    graduation and was awarded a diploma dated November 10th.

        24             THE COURT:  It seems to me neither you nor he knew

        25    he had been awarded a diploma until some time later.

                                                                    I -  44

         1             MR. STILLEY:  Your Honor, he certainly knew.

         2             THE COURT:  It seems that neither you nor he knew he

         3    had a diploma until sometime later.  Is that correct?

         4             MR. STILLEY:  No, he knew he had completed the

         5    requirements.

         6             THE COURT:  I didn't ask you that.  I asked you, did

         7    you or he knew he had a diploma at that time?  I didn't ask

         8    you about completed requirements.  Don't try to change the

         9    song and dance, you know.

        10             MR. STILLEY:  That he knew?

        11             THE COURT:  A diploma.

        12             MR. STILLEY:  On what date?  On the 10th of

        13    November?

        14             THE COURT:  When he started Mountain Park.

        15             MR. STILLEY:  It had not been awarded at that point

        16    in time.

        17             THE COURT:  It's out.  Excluded.

        18             Well, his work as security guard there.  I guess

        19    you're going to talk about his work, so that's that.  That's

        20    denied.

        21             MR. STILLEY:  I beg your pardon?

        22             THE COURT:  That will be in.  The motion was to

        23    exclude it, so he'll be able to talk about his work, which is

        24    part of his work is a security guard as you already

        25    mentioned.  That's fine.

                                                                    I -  45

         1             What about all these deposition excerpts?  I mean,

         2    well, first of all, we can deal with plaintiff's.  Why do we

         3    need to deal with plaintiff's depositions other than in terms

         4    of cross-examination or something?

         5             MR. OLIVER:  I'm afraid I'm not following Your

         6    Honor.  Parts of plaintiff's deposition are admissible.  They

         7    are not hearsay, they are admissions under Rule 803(d).

         8    Anything he says we can introduce.  I mean, obviously we're

         9    not going to use everything that we had because the Court has

        10    correctly narrowed the scope of the trial, so we'll be

        11    pairing our stuff down tremendously.

        12             THE COURT:  You want to file a motion to exclude

        13    these references to designated deposition excerpts, and maybe

        14    we're going to have to wait until that time, because we're

        15    not going to keep going over ground that's been tread.  If

        16    it's rebuttal or whatever.

        17             MR. STILLEY:  Your Honor, I have no problem with

        18    them using it for impeachment.  I think they need to get the

        19    testimony from the witness stand.  If they don't like the

        20    questions, they can come back in their case and get the

        21    questions answered straight from him.  I don't think it's

        22    necessary or appropriate.

        23             THE COURT:  I don't see repeating the same testimony

        24    as to what he said.  What's the point?

        25             MR. OLIVER:  There isn't any, and it won't happen.

                                                                    I -  46

         1             THE COURT:  So anything you're going to put on in

         2    terms of a deposition testimony of Mr. Blair would be

         3    something where he said something different or something

         4    partially different?

         5             MR. OLIVER:  Absolutely, Your Honor.  We won't offer

         6    anything -- we don't need to prove it twice.

         7             THE COURT:  I'm trying to tell you.

         8             MR. OLIVER:  And we do not intend to try to.  We

         9    just listed things out of abundance of caution so nobody is

        10    surprised.

        11             THE COURT:  Fine.  This will be denied as moot.  We

        12    have an understanding here.  Oh, deposition testimony of Ron

        13    Blair.  I don't think Mr. Blair -- will there be any

        14    testimony in reference to Mr. Blair?

        15             MR. STILLEY:  To Ron Blair?

        16             THE COURT:  Yes.

        17             MR. STILLEY:  I had made an objection to part of

        18    that because it was just every question was leading at the

        19    deposition.  I know that theory is that they can put this

        20    testimony in because he's unavailable, he's more than a

        21    hundred miles away, but the testimony that I objected to was

        22    just --

        23             THE COURT:  Well, I don't think he's testifying.  Is

        24    there going to be any testimony from Mr. Blair?

        25             MR. OLIVER:  By deposition at least, Your Honor.

                                                                    I -  47

         1             THE COURT:  For what purpose?  I mean, I don't

         2    understand why we're going to have testimony at all from

         3    Mr. Ron Blair.

         4             MR. OLIVER:  Because the question and answer is the

         5    opinion that the boy can't be believed, that he's untruthful.

         6    It's character attack, Your Honor, no ifs, ands, and buts

         7    about it.

         8             MR. STILLEY:  Judge, I think on the basis of your

         9    rulings, I think that needs to be kept out.  We went through

        10    and took out a great number of things that perhaps one side

        11    or other would have liked to talk about that is improper.

        12    And the good part of this testimony is Mr. Oliver making

        13    statements and every once in ail while Mr. Blair says yes.

        14             MR. OLIVER:  That's exactly what Rule 611(c) says

        15    you do in cross-examination, Your Honor.

        16             THE COURT:  I'll tell you what, I'll take this under

        17    advisement.  You all get 611(c) and also the character

        18    witness testimony so we can look at it in light of those two

        19    issues, okay.

        20             MR. OLIVER:  It's 608, Your Honor, if my memory

        21    serves me correct.

        22             THE COURT:  Okay.  We'll look at it in terms of

        23    those two things.

        24             MR. STILLEY:  Judge, on Jordan's deposition

        25    testimony, some of this relates -- refers to prohibited

                                                                    I -  48

         1    matters such as the adjudication in Crawford County, so we

         2    want to take that out.  We're objecting to --

         3             MR. OLIVER:  That's correct, Your Honor, before we

         4    ever broach Jordan's deposition again, we will have conformed

         5    it to the Court's rulings.

         6             THE COURT:  Okay.  I'm looking at we got some

         7    objections, defendants' objection to the deposition of Sam

         8    Gerhardt.  That shouldn't be coming in.

         9             Objection to Betty Sue Wills.  I don't see that

        10    coming in at all.

        11             And then we've got some problems with or at least

        12    some objections to the instructions.  I think my law clerk

        13    called you all and told you all to take out these --

        14             MR. OLIVER:  May I approach, Your Honor?

        15             THE COURT:  Put it in the formal names of the

        16    various parties as opposed to --

        17             MR. OLIVER:  May it please the Court.  In raising

        18    the practical problem that Mr. Briggs and I wanted to bring

        19    to the Court's attention, before we start to try to avoid

        20    problems, our clients, because a lot of them have the same

        21    last name, their typical mode of talk or typical address with

        22    respect to Mr. Bob Wills is Pastor Wills, that's the way they

        23    refer to Bob Wills.  With respect to Sam Gerhardt, it's

        24    usually Brother Gerhardt to distinguish him from Bo, his son

        25    Bo Gerhardt, who is usually Mr. Gerhardt.  Mrs. Wills, Betty

                                                                    I -  49

         1    Sue Wills is frequently called Sister Wills.  And I know that

         2    the Court has strong feelings about the appropriateness of

         3    titles.  And I just wanted to call the Court's attention to

         4    the fact that from time to time these people are going to use

         5    those titles.

         6             THE COURT:  I don't have any problem with the

         7    witnesses using it because I know they are going to use what

         8    they are familiar with.  I'm just concerned about how it

         9    looks, you know, if it's an appellate issue and the Court of

        10    Appeals is looking at it in terms of these instructions.  Not

        11    me or the jury.  Part of all this record stuff is for any

        12    appellate court.

        13             MR. OLIVER:  Well, Your Honor, I didn't -- when I

        14    was advised, I have no problem removing it.  I just raised --

        15    I put it in there because quite frankly, you know, in dealing

        16    with them, I've grown accustomed to using their terminology

        17    and that's why it's in there.

        18             THE COURT:  I think it's appropriate for the trial,

        19    but I think you're going to have to make it clear to the jury

        20    who we're talking about in terms of any instructions, that

        21    you're referring to this as your name is that.  When you do

        22    your closing arguments, you can just make it clear.  I was

        23    just looking at the appellate situation, that's all.  I don't

        24    have a problem with it during trial.

        25             MR. OLIVER:  Thank you, Your Honor.

                                                                    I -  50

         1             MR. STILLEY:  I'm happy, Your Honor.

         2             THE COURT:  Okay.  What other problems do we have

         3    other than these instructions that I think we can work with

         4    later.  Because we got this jury here.  We'll take a recess

         5    and then we'll see what's happening with our jury so we can

         6    get started.  We had some -- we got any problems with

         7    exhibits or the interrogatories or anything left with that?

         8             MR. OLIVER:  We do have -- we have problems with --

         9    you've effectively excluded several of both side's exhibits.

        10    The only exhibit that we have difficulties with is Exhibit

        11    39, the plaintiff's exhibits.  It's 39 which is

        12    unauthenticated sheet from an unauthenticated medical record.

        13    It's actually quite misleading.

        14             THE COURT:  I don't know what 39 is offhand.

        15             MR. STILLEY:  Your Honor, I got a complete set for

        16    you, if I may approach.

        17             THE COURT:  Sure.

        18             MR. STILLEY:  Your Honor, maybe I can speed things

        19    along here.  If we're going to present testimony about the

        20    medicine, I'm not sure it would even be relevant to show that

        21    he didn't have acne on his back beforehand and he did

        22    afterwards.  I mean, I'm just trying to be fair with you, I

        23    know what you've already ruled.

        24             THE COURT:  You know what, you're trying to be fair.

        25    I'll be the judge of that, please.  Be fair.  Listen, you're

                                                                    I -  51

         1    trying to be fair for your client, and Mr. Oliver tries to be

         2    fair for his client.  And those two things are completely

         3    different.  Why do you think we've been up here talking for

         4    over an hour?  And why do you think they give me this robe,

         5    have me sit up here and try to figure out the difference

         6    between what you both all are talking about is fair.  Please.

         7    Fine, you say since we're excluding -- since the Court is

         8    excluding evidence about medicine and so forth, you're not

         9    going to use this exhibit; is that correct?

        10             MR. STILLEY:  I don't see any way to use it, and I'm

        11    willing to withdraw it.

        12             THE COURT:  Fine.  Anything else in that regard,

        13    Mr. Oliver?

        14             MR. OLIVER:  Judge, in view of all your rulings, we

        15    don't have any objection to plaintiff's exhibits numbered two

        16    through 38, nor 41, which we had previously objected to.  In

        17    fact, I would suggest the Court just treat them as admitted.

        18             THE COURT:  Fine, I'll do that then, and that will

        19    save some time.

        20             Now, let's sort of figure this out.  Mr. Stilley, it

        21    would seem that you basically got one witness now?

        22             MR. STILLEY:  Well, I'm going to call the defendants

        23    to get just a little evidence from them.

        24             THE COURT:  Fine.  What else do we need to do before

        25    we take a recess and see if we got the jury in order here?