Kenneth Behrend – TLC ’08 Grad.
This was my FIRST jury trial since graduating from the college in 2008. Wow, what a difference there is in the experience of trying a case after TLC!!!
In preparing for this case, I listened to the CD’s of Gerry’s “Win Your Case. During the trial, every morning driving to court and every night driving home, I listened to the section of the book that addressed the part of the case that was actually happening. It felt as if Gerry was standing beside me in the courtroom and was very comforting to here is melodious voice. Interestingly, as I listened to certain sections over and over, my mind would wander into my own examinations, arguments, etc., and helped to crystallize them.
This case involved claims for conversion and breach of contract against Walgreens. My client was a small vendor, whom Walgreens owed money to. Most significantly, my client is owned by my sister Becky, which came with a boatload of additional pressure and family relationship issues, since I am her younger brother. Needless to say, I would never hear the end of it, if I lost the trial.
My sister’s small company, MXM Essential Formulas, Inc., produces vitamins and sells them to middleman/marketing companies who resell to drug store chains like Walgreens, CVS, Rite-Aid. In the early 2000’s, she sold to a middleman company called Triad ML Marketing, Inc. In November of 2002, they start selling the vitamins through Walgreens on consignment via Walgreen’s Pay on Scan system. (No payment is made until the vitamins are “scanned” at the cash register and paid for by a customer). The consignment issue is important since it relates to the conversion claim, which includes a claim for punitive damages, if the defendant’s conduct is outrageous.
In mid-2003 Triad decides to squeeze more money out of my sister by slowing down payments and suing her in federal court. She counterclaims for copyright infringement (she designed the labels and was never paid). There is a settlement where Triad agrees to pay her by assigning all of the existing inventory with Walgreens (56,552 bottles @ $7.42 per bottle) and around $200,000 in the account’s payable from Walgreens. The transfer occurs in October of 2004.
Walgreens then enters into a contract to sell the vitamins with my sister’s company on consignment, since the vitamins make money for Walgreens. Walgreens then refuses to pay her for over a year and a half and in 2006 she comes to our dad for help (he was also an attorney). Ultimately, it turns out Walgreens has failed to disclose the amount of money that was in the Triad accounts payable and destroys about half of the bottles in inventory without authorization from my sister.
At trial, the judge refuses to make a ruling as a matter of law that there was a consignment. Instead, he makes it a jury question and in the closing charge reads the defense’s very confusing jury instructions on consignment and conversion, so the jury determines that no consignment and no conversion, only a breach of contract.
Defense counsel is from White and Williams in Philadelphia and is a Pennsylvania SuperLawyer.
Walgreens offered $57,000 to settle. Jury verdict, with interest is just over $600,000.
In Pittsburgh, Pennsylvania the court does individual voir dire, so it is more difficult to build a tribe, but TLC/Gerry’s methods of how to connect with jurors is powerful even on an individual basis! By using these methods, I never felt so connected to a group of strangers. Best effort was with one woman who came in spouting about frivolous lawsuits, McDonalds case, etc. I thanked her for having the courage, and being honest about her feelings, in order to be able walk into a room of lawyers in a courthouse and tell them that there are too many lawsuits and most of them are fake claims. I also told her that I respected her opinion, it was hers and she was entitled to have it. Next, I respectfully asked her Q. Had she ever talked to a juror who served in one of “those types of cases” A. No. Q. Have you ever looked into or investigated on your own why a large verdict occurred like the McDonalds case? A. No – I read it in the newspapers. Q. Do you believe everything you read in the newspapers? No. Q. You have a small business with your husband, have you ever had a legal problem? A. Now that you mention it, yes, we once had a sale of a business property fall through. Q. tell me more about that? A. We were forced to hire and attorney, because we were cheated. Q. How did that make you feel? A. a long pause then….. Oh … I see your point. Q. Would it be alright with you if my client was forced into having to hire an attorney? A. Yes. (Her entire physiology changed it was amazing to see her open up to me and acknowledged that yes, it might be ok to file a lawsuit).
It was amazing, by showing respect and using the listening skills, every juror opened up after starting out either neutral or somewhat hostile. As a result, a bond was started with every juror.
The focus was on creating simple rules for the jury to make sense out of the intricate complex issues in the case. To help in understanding the flow of the story, a timeline/flow chart was designed with the help of my wife and 11 year old son that showed the key events and the damages that were caused by them. After looking each juror in the eyes and telling them how I was feeling – that I was tired from all the work it took to prepare in the last couple of days, then, I explained to the jury that this case is like a jigsaw with 1,000 pieces and Walgreens had around 900 of the pieces in its possession, and had refused to share them with us until the court forced them to share some in the fall of 2011 and the court forced them to share the rest in March of 2012. That putting the puzzle together was difficult and time consuming, but here it was – and showed them the timeline/flow chart. They looked relieved that they had a roadmap to reference and to use as a guide through the trial.
To help establish the rules of the case ala David Ball, I read to the jury from a children’s book called: “How to Behave and Why.” I explained that it is a book that my wife and I read to our children. The 3 rules of the case were: 1) If I owe money I pay it; 2) If I make a mistake I admit it – I don’t’ cover it up; and 3) If I have someone’s property I return it in good condition, I don’t damage it. Then I went on to explain a consignment and how an auctioneer sells on consignment. After which I matter of factly went through the chart and the key points of the case. It took one hour and 15 minutes, but the jury was attentive the whole way through.
Examination of Witnesses
During the trial there were four witness from Walgreens. Three became involved after the problems arose, and Walgreens failed to produce the employees who actually caused the problems and worked on the numbers. 1 – the buyer who authorized selling the vitamins in Walgreens. He did not remember much, and said he had no memory of a documents $248,000 deduction that improperly occurred. He said that $248,000 was an insignificant amount of money and that’s why he could not remember it. And, he forgot that he never attempted to have the money repaid. Instead, he said it was a small amount of money – that it was an insignificant amount, not enough to remember. – this admission astonished me and it played well in the closing. 2 – the head of accounts payable – didn’t come into the job until 2005 and did not really know anything about the transactions at issue all of which occurred prior to his tenure. 3 – the buyer who took over for the first buyer, said he knew nothing of the behind the scenes number crunching. 4. the in house counsel – she was evasive, controlling and argumentative. I used a controlled cross on her in a very polite and deferential manner – she appeared to hate how she was being questioned and she openly appeared to dislike me. When pressed, she admitted that she was acting as a “zealous advocate” for Walgreens in attempting to reduce the amount of damages!
During the cross of my sister, Walgreen’s counsel attempted to control and push my sister, but she proudly and politely stood her ground. We worked with her in trial preparation including two psychodrama groups. (Thanks to Simina Vourlis and Chris Youngs!). Also, defense counsel slandered my father saying he “gamed Walgreens” into overpaying my sister. So, we had to defend our dead father’s honor – but calmly and politely. My sister, was wonderful on redirect sharing with the jury about who our father was – a church elder, a president of the local YMCA, involved in the Boy Scouts, a loving father and husband. Then, she shared about his funeral and about her and my mother’s fear that no one would hardly show-up since he was 85 years old when he died and most of his friends predeceased him. Several thousand people showed up to his funeral, a judge gave his eulogy, and she looked at the jury and said that defense counsel could ask any one of them what type of man he was. She was magnificent and remained strong, I broke down into tears at the thought of how I missed my father. His love and caring was shown throughout the letters he wrote on my sister’s behalf in this case. The judge saw me and kindly called a recess.
During the trial I objected twice – Defense objected repeatedly. My first objection was because defense counsel kept suggesting answers to questions for his clients, I said out loud in the court room that I do not object to what he is asking, just that he is suggesting the answers to his clients. The second was because defense counsel stated in a question how we had been here for two weeks. I objected stating that it may have felt like two weeks, but in fact it was only 5 days. The jury and the judge chuckled and the judge sustained my objection.
During Defense counsel’s closing argument, Defense counsel paced up and down and spoke most of the time to the ground. He appeared nervous – eloquent, but nervous. His words did not resonate or “ring true.” He focused on certain documents, but one was the heart and soul of his whole argument. He even had the key document “blown-up” on a large poster board. Throughout most of his closing I closed my eyes, as Gerry says to do, and listened to the cadence and sound of his voice, to see if I could hear and feel his weaknesses. This exercise in listening helped calm me and to recognize that I was prepared and ready to handle his arguments in my closing.
In my closing, I started by looking every juror in the eyes and then acknowledged how much they had sacrificed in this week long trial, as well as how much they paid attention. Then, I picked up his large poster board and told the jury its a useless document since nothing on it can help you decide the case, and then dropped it onto the floor, as if it was a piece of garbage. (One of the jurors told me that he repeated that same words and actions in the jury room when the foreperson put it up on an easel).
Importantly, in organizing my closing, I borrowed some from Gerry’s case where he represented a small vendor against McDonalds and from his Kerr-MgHee (Silkwood) closing. (If you have the opportunity, they are wonderful to read and to become familiar with).
Next, I empowered the jury by pointing out that they are the voice of the community and said they had more power than the judge. Next, I reviewed the concept of “actions speak louder than words.” Showing how Walgreens actions failed to compare to that of an honest person. For example, if they were acting honestly they would have contacted Becky the moment the inventory and accounts payable became hers and worked with her. Instead, they withheld information from her and refused to pay her anything for over a year.
Next, I pointed out the holes in their defense. Then, I read some “life rules” from another children’s book “Be Honest and Tell the Truth” and told the jury the story about preparing for the case, how I practiced my opening on my eleven year old son and my wife. After I was done telling the story to my son, he said, “Dad, I know what your case is about” and went out of the room and returned with the book my wife had been reading with him: “How to Behave and Why.”
In conclusion, I repeated the three rules and closed with a different section from “How to Behave and Why” – “Good people should not allow bad people to take your property by stealth or otherwise. This is because the world would be a miserable place to live. And no one’s property would be safe.” Then, I asked them for a happy ending, and thanked them for listening, since Walgreens and Walgreen’s lawyer never listened, but you have. And just as important is that you now have the power to make Walgreens listen.
Afterwards, the court reporter took me aside and said she was moved to tears by my closing – one of the best she ever heard. What she did not know, was that she was hearing from a Warrior – who is part of the great tribe of F-Warriors!
Thank you all for your support, guidance and friendship! This verdict would not have happened without TLC in my blood and heart.
Ken TLC ’08
p.s. I wore my medicine bag each day, so you were all there fighting with me in the courtroom!