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?

                                                                    I -  52

         1             MR. STILLEY:  Your Honor, there's a couple things I

         2    want to ask you about.  On the exhibits that we've excluded,

         3    and we've excluded 39.  Is that all that's excluded?

         4             THE COURT:  That's my understanding.  Mr. Oliver

         5    said as far as he was concerned two through 38 admitted.

         6             MR. OLIVER:  We need to look at eight, Your Honor.

         7             THE COURT:  He changed his mind.

         8             MR. OLIVER:  No, I'm all for it, but I believe the

         9    Court's ruled that eight is out.  That's the --

        10             THE COURT:  Why don't you take it out real quick.

        11             MR. OLIVER:  That is the Court's order, so I believe

        12    the Court's ruling covers that.

        13             MR. STILLEY:  I want that out.

        14             THE COURT:  Two through seven, nine through 38

        15    without disagreement or objection will be admitted.  What

        16    else did we need to do before we take a little break here?

        17             MR. OLIVER:  Forty and 41.

        18             THE COURT:  We're not doing any 40, 41.  They are

        19    out as far as I understand.  Unless we can see later.  What

        20    else?

        21             MR. STILLEY:  We can't have 41?

        22             THE COURT:  I don't know.  I don't know if there is

        23    an objection to that.

        24             MR. OLIVER:  41 is the pictures of some girls

        25    playing.  I don't know what it refers to, but it's okay with

                                                                    I -  53

         1    us.

         2             THE COURT:  Okay.  What about 40?

         3             MR. OLIVER:  40 was the affidavit was used to get

         4    the arrest warrant.

         5             THE COURT:  You aren't going to use that, are you,

         6    Mr. Stilley?

         7             MR. STILLEY:  We're going to take all that out.  And

         8    I may have to take a little out of three, but during the

         9    break I'll make sure I don't have anything to violate the

        10    order.

        11             Here's what I want to ask you about.  For the

        12    jury -- to advise the jury, can I just move to admit and then

        13    recite the numbers, the correct ones?  How do you want to

        14    handle that?

        15             MR. OLIVER:  As far as I'm concerned they can be

        16    just treated as admitted without any further reference.

        17             THE COURT:  I don't think I need to rule on it.  I

        18    mean, if they ask for something, I'll send them back.  I've

        19    admitted them already basically.

        20             MR. STILLEY:  I just wanted --

        21             THE COURT:  Let me show you what's been admitted as

        22    exhibit -- you can do it that way.

        23             MR. STILLEY:  Certainly, that works.  One other

        24    thing I want to ask you about is since we do have quite a few

        25    papers, do you mind if I have Ms. Teri Young help me from

                                                                    I -  54

         1    time to time at counsel table?

         2             MR. OLIVER:  I do mind, she's not a lawyer.  She's

         3    not a paralegal.  She is the person who technically under

         4    Arkansas law has committed barratry.  She's paying for all or

         5    part of this.  She has no place at counsel table.

         6             MR. STILLEY:  Judge, I just -- I'm not the best at

         7    paper.

         8             THE COURT:  Is she an employee in your office?

         9             MR. STILLEY:  No.  I must confess, I have employed

        10    her in an ad hoc basis from time to time, but she's not an

        11    employee in my office.

        12             THE COURT:  If she's not a paralegal or lawyer, not

        13    employed in your office in this capacity, I don't see any way

        14    that I can do this.  Generally other than parties or the

        15    lawyers are not allowed inside those swinging gates anyway

        16    unless they are going to testify.

        17             MR. STILLEY:  I just wanted to check.  I just want

        18    to check.

        19             MR. OLIVER:  We ask for the rule on witnesses.

        20             THE COURT:  You understand that?  So that will go

        21    for both sides.  That means that if you are a witness you can

        22    only be in here if you are testifying.

        23             MR. OLIVER:  Or if you're a party.

        24             MR. STILLEY:  I understand that.

        25             THE COURT:  Anything else?

                                                                    I -  55

         1             MR. OLIVER:  Nothing, Your Honor.

         2             THE COURT:  Why don't we -- we better give us 15

         3    minutes.  20 minutes to 11 we'll get started.

         4             (Court in recess from 10:24 a.m. until 10:48 a.m.)

         5             (Voir dire conducted.)

         6             (Jury seated and sworn.)

         7             THE COURT:  Ladies and gentlemen of the jury, I'm

         8    going to take a few moments now to give you some initial

         9    instructions about this case and about your duties as jurors.

        10    At the end of the trial I'll give you further instructions.

        11    I may also give you instructions during the trial.  Unless I

        12    specifically tell you otherwise, all such instructions, both

        13    those that are given now as well as those that are given

        14    later are equally binding upon you and must be followed.

        15             This is a civil case which I've explained to you

        16    brought by Jordan Blair against Bob Wills doing business as

        17    Mountain Park Boarding Academy, and all the other defendants

        18    who were introduced to you earlier today.

        19             Now, there are two claims in this case, one is that

        20    Plaintiff Blair asserts that there was a battery committed

        21    against him by the Defendant Bo Gerhardt on October 24th, a

        22    shoving incident that he claims.  And Mr. Gerhardt denies

        23    this.

        24             The second claim of the Plaintiff Blair is made

        25    against all defendants that under federal law, specifically

                                                                    I -  56

         1    the Fair Labor Standards Act, that he was an employee of the

         2    defendants because he performed these various tasks while as

         3    a student at Mountain Park and Palm Lane.  Plaintiff claims

         4    that he should have been paid for performing these tasks.

         5    All of the defendants deny that Mr. Blair was ever an

         6    employee.  So that's what this case is about.

         7             From the evidence you will decide what the facts

         8    are.  You're entitled to consider that evidence in light of

         9    your own observations and experiences in the affairs of life.

        10    You will then applies those facts to the law which I give you

        11    in these as well as the other instructions and in that way

        12    reach your verdict.

        13             You are the sole judges of the facts, but you must

        14    follow the law as given in the instructions whether you agree

        15    with it or not.  In deciding what the facts are, you may have

        16    to decide what testimony you believe and what testimony you

        17    do not believe.  You may believe all of what a witness has

        18    said, only part of it, or none of it.

        19             In deciding what testimony to believe, consider the

        20    witnesses' intelligence, their opportunity to have seen or

        21    heard the things testified about, their memories, any motives

        22    they may have for testifying a certain way, their manner

        23    while testifying, whether they said something different at an

        24    earlier time, the general reasonableness of their testimony,

        25    and the extent to which their testimony is consistent with

                                                                    I -  57

         1    other evidence that you believe.  Do not allow sympathy or

         2    prejudice to influence you.  The law demands of you a just

         3    verdict unaffected by anything except the evidence, your

         4    common sense, and the law as given in the instructions.

         5             You should not take anything that I may say or do

         6    during the trial as indicating what I think of the evidence

         7    or what I think your verdict should be, that is entirely up

         8    to you.  Evidence from which you will find the facts will

         9    consist of the testimony of witnesses and documents and other

        10    things received in the record as exhibits and any facts that

        11    the lawyers agree to, that we call that a stipulation or that

        12    the Court may instruct you to so find.

        13             Certain things, however, are not evidence and I'm

        14    going to list those things for you now.  Statements,

        15    arguments, questions by the lawyers are not evidence.

        16    Objections to questions are not evidence.  The lawyers have

        17    an obligation to their client to make an objection when they

        18    believe that evidence that is being offered is improper under

        19    the rules of evidence.  You should not be influenced by the

        20    fact that an objection has been made nor the Court's ruling

        21    on an objection.  If an objection is sustained, you should

        22    ignore the question and not try to guess as to what the

        23    answer might have been.

        24             If the objection is overruled, you should treat the

        25    answer just like any other.  If you're instructed that some

                                                                    I -  58

         1    item of evidence is being received for a limited purpose,

         2    then you must follow that instruction.  Testimony that has

         3    been excluded by the Court or that you're told to disregard

         4    is not evidence and must not be considered.

         5             Anything that you've seen or heard outside the

         6    courtroom is not evidence and must be disregarded.  You're to

         7    decide this case solely on the evidence presented here in the

         8    courtroom.

         9             At times during the trial I may sustain objections

        10    to questions asked without permitting the witness to answer

        11    or where an answer has been given may instruct that it be

        12    stricken from the record and that you disregard it and

        13    dismiss it from your minds.  You may not draw any inference

        14    from an unanswered question nor may you consider testimony

        15    which has been stricken in reaching your decision.  The law

        16    requires that your decision be made solely upon the competent

        17    evidence before you.  Such items that are excluded from your

        18    consideration will be excluded because they are not legally

        19    admissible.

        20             The law does not require, however, that you accept

        21    all of the evidence that is admitted, even though it may be

        22    competent.  In determining what evidence you will accept, you

        23    must make your own evaluation of the testimony given by each

        24    of the witnesses and determine the degree or weight you

        25    choose to give such testimony.