EP 803- Sexual Assault Verdict for the Plaintiff Part Two

Episode Notes

Transcript

Speaker 1:

Welcome to Heels in the Courtroom, a podcast about successfully navigating law and life. Featuring the women trial attorneys at the Simon Law Firm.

Amy Gunn:

Hello everyone, and welcome back to another episode of Heels in the Courtroom. I am Amy Gunn, and today I’m joined by Mary Simon. Elizabeth McNulty and Erica Slater. Hello ladies. Hey, hello. Today I have some good news. I actually won a trial. Yay. So we are going to talk about that case, the facts of the case, go through the trial and to share that experience. I was hired as local Counsel a few years ago for a woman who had lived in Colorado. She worked for an insurance company in sales, and they had a sales conference for the high performers. So she came in from Colorado. It was a small group, and a gentleman came in from Minnesota. So there were a number of folks that were in the meetings that day. Then they went to dinner and then to a bar. And in the course of the dinner and bar, my client had a few drinks, admittedly a few drinks, as had everyone else in the group.

She came back to the hotel, was escorted to her room because she wasn’t feeling very well left in her room, and sometime later, maybe half an hour later, about 1:00 AM knock on the door. It is the defendant and she knows him. She has no reason to fear him. She opens her hotel room, he kind of pushes in and says, I have to pee. And she’s a little stunned by that. But again, no reason to fear. He goes into the bathroom pees, and in the meantime she goes back to lay down because she’s not feeling well. She felt like maybe she had too much to drink, but also thought maybe it was a little bit more than that. He comes out of the bathroom and assaults her. The defendant claims that it was consensual. She says, no it was not. And five years later, almost, here we are.

So to fill in some of the blanks, she was and is married at the time. She had a young child at home. She’d been working for this company for a few years and was doing really well. Had been promoted in the sales organization, was doing really well, had known the defendant through a couple of previous meetings. In fact, he had been in Colorado doing some sales talks. He was a head honcho sales guy, had been in Colorado. Her husband also worked for the same company. So he knew not only my client, but also her husband. And weird kind of twist was that the defendant’s son who had graduated high school, who looking to go to work for the same company and basically was going to decide which region he wanted to work in, because again, the defendant was in Minnesota and he chose Colorado and he ended up choosing my client’s team.

So on the night of this assault, my client and the defendant had a conversation about his son coming to work for her. Both very excited about that prospect. My client believed that it was a good fit. And of course, there’s nothing wrong with having one of the boss’s sons work for you. And the defendant was excited about that because he really liked the team that my client had put together. So they had had a conversation at dinner about that, about the son coming to work again, excited. The defendant alleged that in conversations with my client that evening, she didn’t have her wedding ring on and was flashing her wedding ringless hand saying, did you notice I’m not wearing my wedding ring? And he was like, no, I didn’t notice that and claims that. She also said, I’m having marital trouble. So the defendant then says, well, this really was crazy to me because my son had just decided to go to work for her, and now I’m worried about the stability of the team because her husband and she were on the same team, and if they’re having marital problems, that could be disruptive to team.

Okay, my client says, of course that didn’t happen. But what did happen earlier in the day, she had come in from Denver with two other sales reps from other parts of Colorado. They’d all come in. Three of the top salespeople had come in for this, two other women, and those three women had lunch. And at lunch, my client had pointed out, I don’t have my ring on, I forgot it. She had to get up at three 30 in the morning to catch the flight, and she just forgotten to put it on. And in that same conversation, the other two women also worked with the same company with their spouses or significant others. So the conversation was like, oh, how do y’all do that? It was newer for she and her husband. And so it was a conversation about how do you do that work together and live together?

Does that ever cause any problems? So there was just a shred of truth in the idea. She didn’t have a winning ring on because she accidentally left it at home, and that she had sort of a general vague discussion about how do you work with your husband? Normal things, normal things that people talk about. And so moving on through the evening, what we were able to understand after talking to some witnesses is that our client had a number of drinks, but it really was an odd reaction to it. She doesn’t drink that often, but she was really impaired witnesses said that by the end of the evening at theBar, she needed help to the Uber. She needed help to her room after returning to the hotel, but had been put to bed essentially. Did the defendant know that too? The defendant was also at theBar claims that he didn’t really think that she was intoxicated and that she shared with him her room number when she said at theBar later that night, you notice I don’t have my wedding ring on and I’m having marital problems.

I want to talk about it later. I’m in room, blah, blah, blah. And so that’s his story. So that’s how he explains that he knew what room to knock on and why he was going there. Now, you might be asking yourself, ladies, why does he need to go there at one o’clock in the morning and why do you need to pee in her room? And the answer is, you don’t need to do that. So what happens is this assault happens. As he was leaving, he said, don’t tell anybody. And then he testified as he was leaving from this consensual event, she said, don’t tell anybody. And he says, on the way out, don’t worry, I won’t tell a soul. And I got to cross examinee him at trial, and that was one of my themes. It’s creepy. My theme in cross-examining him was, I know he’s a master salesman, a master salesman, and so I need to get him to agree to some facts such as it was 1:00 AM she’d already gone to bed, you needed to pee because he admitted that, which is creepy.

He’s 50, she’s 35. The creep factor was pretty high. He’s her superior too, right? Or higher than not a direct superior, but definitely higher in the company. Higher in the company with power. Yeah. What happened after the assault is she falls asleep. She is vomiting. This is the whole, she feels like she was drugged. And at six o’clock in the morning or six 20 in the morning, she starts texting her husband, it’s five 20 in the morning in Colorado. He has his phone silenced. So we have the text messages, which please call me, please call me. And then she gets frustrated and says, forget it or something, because there’s just a lot of emotions going on with her right now. And he looks at this phone and was like, what is happening? Why are you being so mean? And these are text messages that the defendant tried to prove they’re having a terrible marriage.

And so she then that morning calls a number of people. So first of all, if you’re having an affair, are you telling everybody about it? So that just never made any sense to me. She couldn’t reach her husband. So she calls somebody else in the company, a woman who she had lunch with the day before. They weren’t friends, but they were colleagues at work, even though they’re in different regions. And she was a woman and she thought, maybe I can trust her. So she calls the woman and tells her what happened. And the woman says to my client, do you want your career to be over? Yeah. Basically says you can tell people, but your career’s going to be over. So that put my client in a tailspin. And so she made some more phone calls and ends up going to the hospital, a smaller hospital, the St.

Louis area, and has a red kit done, which is horrific, and anybody who’s lying, and this is keeping up a long con to cover up a consensual relationship, number one, telling everybody about it. Number two, going to the hospital for a rape kid. And then she reaches her husband, he comes to St. Louis, they go home. There are consequences for the defendant in terms of his employment, and she tries to continue to work there. There’s just too much trauma with going on business trips and dealing with the people because everybody knew at that point, and she ends up leaving that and they end up moving to a different state, but they were able to keep their marriage intact with a lot of therapy and understanding, and also continued to be employed just in different places. When she went to the hospital that morning, the next morning, the hospital is a mandatory reporter, so the police are called a little municipality.

Police come in uniform, and she’s just gone through, she’s at the ER for six hours. She’s interviewed because there’s something called a forensic sexual assault examination, SANE. And there are special forensic nurses for this, and luckily there was one who was at that hospital. So you do this extensive examination for criminal prosecution. It wasn’t done entirely by the book, but it was done. Officer comes, interviews my client and then takes her to the police department to be interviewed further by a detective. So she’s by herself in a police car, going to the police department to be interviewed again by a detective. There’s a recording of her interview that the police department lost. So all this is happening on the very next day. They let her go home and her husband is flown in and they stay together that night, and then they fly home together the next day.

In the meantime, the defendant goes home. The company took his cell phone, his business cell phone, but he had a personal cell phone. And you can make having two cell phones, pretty creepy sounding too. The officer who was investigating, and I put that in quotes, this claim didn’t have his personal cell phone number. And so an entire week goes by before the police even talked to the defendant. And so you can imagine that conversation over the phone with the guy, with the defendant having a week to think of what the story’s going to be. He goes into the story with the police officer about how it was consensual, and she basically begged him to have sex with her. This is one of the tragedies of the case, is the police officer says to the defendant, you know what I mean? I’m listening to you and I’m leaning that this was consensual. And she says she was drugged, but we did the tox screen and it was clean. So that’s quote out the window. He’s saying these words to the defendant, which I was just appalled at that now. So

Erica Slater:

That didn’t come

Amy Gunn:

In. The judge rightfully, it’s a police report, just like a motor vehicle accident, police report.

Erica Slater:

Can the judge report the officer for being awful at his job?

Amy Gunn:

I got you cross examinee him at trial.

Erica Slater:

And did you make him pay for that?

Amy Gunn:

He was a reduced person in the stand. It was very clear between the deposition that I got to take of him and the trial testimony that he did a terrible job on this case and he will never be doing that again. I hope so. I believe that he will do things differently in the future. So the Litigation ensues. So to my client’s credit, after her very Lenivy deposition, it really steeled her and it didn’t intimidate her. Oh, by the way, after my client filed against the defendant, he counterclaims for defamation conspiracy and tortious interference with a contract, which was his employment and the conspiracy. This is the conspiracy, which by the way was correctly dropped at trial. But in the Litigation, it was alleged or intimated that the husband remember that the meeting that was a week or so before the assault included my client and her husband, and the defendant had come in to do some training and to do some cheerleading, and had basically talked about how much money you can make if you do these sales techniques and all this stuff. And it was alleged that after that meeting, they basically targeted him. They basically were like, this guy’s rich, I don’t know, blackmail him or extort money from him. Anybody who has ever cross-examined. I don’t know. An orthopedic surgeon.

Mary Simon:

Yes.

Amy Gunn:

Yeah. So keep that in mind. When I got the assignment to cross-examine the defendant, because I’ve done many, many a surgeon. So after this meeting in Colorado, I guess my client and her husband, who is also my client, because he had a lost consortium client, go set up this plan where she’s going to seduce him in St. Louis. And then what? Extort money from him, I don’t know, employ his son and extort money. It made no sense, and it all went terribly wrong. If that was your plan, why’d she mess it up by going to the police?

Mary Simon:

Of course.

Amy Gunn:

If the plan was, I’m going to have an affair with him and then blackmail him so he never has to tell his wife or get in trouble, it never made any sense.

Mary Simon:

Is the case essentially all lay witnesses,

Amy Gunn:

The details? Yes. We had a psychiatrist.

Mary Simon:

Okay, that makes sense

Amy Gunn:

To testify about the PTSD and the effect that it’s had on her life. We had damages witnesses and the defendant had an economist to explain his 2.5 million wage loss that she caused by these false allegations. Oh,

Erica Slater:

So you tried the counterclaim?

Amy Gunn:

Yeah, just the defamation. They dropped tortious interference. They dropped conspiracy. So

Erica Slater:

Were any of the women who were in the conversation earlier in the day, deposed?

Amy Gunn:

Yes.

Mary Simon:

Was one of them. If you speak up, you’ll lose your job. Pick your choice.

Erica Slater:

Yes. And that was the same one who potentially tipped him off, correct?

Amy Gunn:

Yeah. And she testified that when my client called her first thing in the morning, she said things like, I’ve never cheated on my husband, but she also said that our client was hysterical and crying and distraught. And she also said the night before, she had been really intoxicated. So there were things that this woman said in her testimony that we were able to draw from. I

Mary Simon:

Just keep thinking about how much vulnerability, bravery it takes to pick up the phone and call someone. We’ve reviewed cases before, assault cases that we sometimes, most of the time in my experience can’t take sometimes just because of time that has passed. But to just think about your client and the moment she decides to pick up the phone call someone is, I don’t even know what to put a word to for hearing on the receiving end of that, you’re going to lose your job. Anything but fledged support and trust and belief, she could have stopped there. Your client. Yeah, I think that was point. I mean, you hear a story like hers and the case and you’re just like, man, I don’t know if I could do what she did to just Well,

Erica Slater:

That’s the point. Yeah. I think that’s the point too, because it makes defended even knowing her truth. And even before the self blame may set in as happens to victims that morning, she could have said, this is the worst thing that ever happened to me. I will deal with it on my own and I will survive and go on. And that would’ve been a brave choice. I will, you can’t it. You can’t judge what she did. And then to say, this is the decision I have to make, and to not give up on following that decision and seeing it through to this ending continuing because it only makes her life harder to continue to follow what is right despite the consequences that are trying to knock her down. I have goosebumps listening to this whole thing.

Mary Simon:

I did too. When I heard about the verdict, I was texting Amy and I just could not stop thinking about it. And could you tell, as the trial went on apart from the damages experts and just lay witnesses to get facts, do you think at the end of the case the jury was actually going back to contemplate whose story of facts they believed? Or were you pretty confident at the time they’re probably going to go back and decide damages?

Amy Gunn:

No. I think there was a full discussion about who’s telling the truth, but I’ll tell you this, I got to pick the jury now in federal court, the federal judge did the majority of the questioning. I got 30 whole minutes, but it was okay. The judge did a really good job pulling out the issues. I spent a good deal of time talking about the burden of proof because when you’re talking about sexual assault and rape, a lot of people think that’s a crime that’s beyond a reasonable doubt. And so I needed to make sure that the jury wasn’t going to hold us to a higher burden of proof. And so I spent time on that. But one of the questions of course was have you or anyone very close to you been a victim of sexual assault? And y’all that was hard. Yeah, no doubt.

And so there were women, there were men, and we all did them SideBar. And one woman came up and basically said, I think I’m realizing that I have been sexually assaulted. In other words, having to listen to it and having to face that question. But you think about the statistics are outrageous about many women been sexually assaulted who don’t pick up the phone or just, yep, hide it down, move on, dig deep down. But it was not insignificant. The number of jurors who needed a SideBar to talk about their experience with sexual assault and the defense had tried to get a deal before trial. If the answer to the question, have you or your loved one ever been a victim of sexual assault was yes, they’d be automatically stricken in exchange for the question, have you ever been falsely accused of sexual assault? If that answer was yes, that person would also be stricken.

And we thought about that. I’m like, what are the odds of those? It’s going to be way more and we’re going to lose a lot of people. So we said, absolutely not. I want the ability to question these folks to see if they can be fair, and you might think, how can they be fair? I’ll tell you, there was at least one juror who had some history in his family about this, and the defense didn’t strike him. Didn’t strike him. But Mary, to answer your question, the jurors that were seated, we had five women and three men. It was federal court, so we sat eight jurors and it needed to be a unanimous verdict.

Speaker 1:

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