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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.
I - 59 1
Some of you have heard of the terms direct and 2 circumstantial evidence. You're instructed that you should 3 not be concerned with those terms
since the law makes no 4 distinction between the weight to be
given to direct and 5 circumstantial evidence. In these instructions you're told 6 that your verdict depends on whether
you find certain facts 7 have been proved. 8
The burden of proving a fact is upon the party whose 9 claim depends upon that fact. The party who has the burden 10 of proving a fact must prove it by the
preponderance of the 11 evidence or the greater weight of the
evidence. To prove 12 something by the preponderance of the
evidence is to prove 13 that it is more likely true than not
true. It is determined 14 by considering all of the evidence and
deciding which 15 evidence is more believable. 16
If on any issue in the case the evidence is equally 17 balanced, you cannot find that that
issue has been proved. 18 The preponderance of the evidence is
not necessarily 19 determined by the greater number of
witnesses or exhibits a 20 party has presented. 21
You may have heard of the term proof beyond a 22 reasonable doubt. That is a stricter standard which applies 23 in criminal cases. It does not apply in civil cases such as 24 this.
You should, therefore, put it out of your minds. 25
Now, earlier when we took a recess I gave you the
I - 60 1 admonition. I'll give it to you here again and ask you to 2 recall it when I ask you to abide by
the admonition. 3
During the trial you're not to discuss this case 4 with anyone or permit anyone to
discuss it with you. Until 5 you retire to your jury room at the
end of the case to 6 deliberate on your verdict, you are
simply not to talk about 7 the case. 8
Secondly, you're not to read or listen to anything 9 touching on the case in any way. If anyone should try to 10 talk to you about this case, bring it
to the Court's 11 attention promptly. You should not try to do any research or 12 make any investigation on your own
about this case. Do not 13 form any opinion until all the
evidence is in. So keep an 14 open mind until you start your
deliberations at the end of 15 the case. 16
At the end of the trial you'll have to make your 17 decision based upon what you recall of
the evidence because 18 you will not have a written
transcript. It will be 19 impractical for Sue to read back
lengthy transcript 20 testimony, so pay close attention to
the testimony as it is 21 given. 22
The trial is ready to begin now. And
it won't be 23 long before we go to lunch, okay. The trial is ready to 24 begin now, and I understand you all
did come in at 9:30, so 25 we'll try to get a little done before we go to lunch. |
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