07/09 13:07
00:00:00 Court resumes its session.
00:00:02 Thanks, everybody.
00:00:02 Please be seated.
00:00:05 All right, folks, we're back on record in the Kroenke and Treasure Chest matter, 3AN20-08622 Civil Parties and Counselors present.
00:00:14 Perspective jurors are out.
00:00:17 I have on the bench the directory challenges from both sides.
00:00:44 Okay.
00:00:45 I have two more challenges from the plaintiffs.
00:00:48 I have three challenges from the defense.
00:00:51 You all both struck one witness.
00:00:57 I should say both sides struck the same witness, Allison Castillo, number 19.
00:01:13 And on the plaintiff side in addition to Castillo you struck Julia Fetko number nine On the defense side in addition to I Need to be clear on this
00:01:44 I want to go back on the defense side I said you the same he wrote in Allison Collins Mr. Campion but specified juror number 19 I was looking I'm sorry that was just a slip I meant Castillo not Collins okay so it is juror number 19 Castillo okay all right and in addition Theodore Dirks juror number 12 and Isabella Patterson juror number 15
00:02:16 So, Patterson and dirks Alright, so that leaves us 1, 2, 3, 4, 5, 6, 7, 8 Leaves us 9
00:02:45 which means we've got two extra at this point in time.
00:02:55 I might be making a mistake.
00:02:57 I'm counting 10.
00:03:01 I may have miscounted.
00:03:03 So let me walk through it.
00:03:05 So we have remaining Jillian Wertz, number 14, Adrian Deesaw,
00:03:15 number eight Valerie strong number 10 Patrick Euler number one Courtney berry number two Sidney Kewon number three Patty Collins number four Aaron Naras number five and Justin Doggett number 17 that's my count and I think that's nine
00:03:44 All right, so clerk we need to draw Let's just do it by numbers Generator with with the numbers we have I don't care I
00:04:14 The first two off the list will be the those that are dismissed I'm just making sure that we've got the numbers
00:04:42 So it's 14, 8, 10, 1 through 5, and 17.
00:04:43 So juror number 8, Adrian D'Azeo.
00:05:18 Enter number 10 Valerie straw Both random dismissed, okay Okay, we can bring back in
00:05:49 Sir, this is yours.
00:06:38 All right, welcome back folks So I'm now going to dismiss some prospective jurors one of the things I didn't tell you earlier but I just want to explain just so you're clear is
00:07:03 We do jury selection these days.
00:07:04 Instead of bringing in 50 or 60 people and cramming you in the courtroom and doing it all at once, we do them in panels.
00:07:10 So you're the second group that we've done today.
00:07:12 So we've already actually got half the jurors that we need.
00:07:16 So some of you are being dismissed because of the process that we went through with the lawyers where they each get a chance to make selections.
00:07:24 Some of you are being dismissed because we literally pulled random numbers because we had enough.
00:07:29 So please don't take it personally if you're being dismissed.
00:07:33 I want to thank you all for your service and there's lots of reasons why People do get pricked and why why you don't but the lawyers are entitled to a jury that the parties feel comfortable with So I'm going to give you some names if I call your name out You can go ahead and take your things and go just check in downstairs With Jerry Clark in case you're needed for another trial later this week So we're going to dismiss
00:07:58 Mr. Durkus in the back.
00:08:00 Thank you, sir.
00:08:03 And Ms.
00:08:03 Patterson in the back.
00:08:04 Thank you, ma'am.
00:08:07 And Mr. Dezeo.
00:08:11 Dezeo.
00:08:13 Dezeo.
00:08:14 Thank you, sir.
00:08:17 And Ms.
00:08:17 Fetko.
00:08:18 Thank you, ma'am.
00:08:22 And Ms.
00:08:22 Straw.
00:08:23 Thank you, ma'am.
00:08:28 and Ms.
00:08:29 Castillo.
00:08:30 Thank you, ma'am.
00:08:32 For the rest of you, if you are here and you are still in a chair, thank you for your service.
00:08:37 You are going to be part of our... Oh, I'm sorry.
00:08:40 I missed one.
00:08:41 Ms.
00:08:41 Jackets.
00:08:42 Sorry.
00:08:43 You were on the list also.
00:08:45 Thank you.
00:08:48 Almost miscounted.
00:08:52 So everybody else, you are on our jury panel.
00:08:55 You will have seven
00:08:57 Thank you for joining us.
00:09:21 some instructions and opening statements from the lawyers tomorrow and then we'll get right into evidence so if you could be here at 8 30 instead of checking in downstairs you can check in up here around the corner to the right as you're going out this door all the way at the end of the hall you'll find a glass door it's got some names and buzzers on them one of them is mine Judge Matthews if you press that buzzer we'll let you in and bring you around the back there's a jury room in the back here where you're going to be spending
00:09:50 Your time when we're not on record here at this point in time So you can go ahead and just check in directly there at 830 tomorrow morning and we'll get started with the case So with that folks, thank you for your service.
00:10:02 Thank you for your patience today.
00:10:04 We appreciate your time and we'll see you all in the morning
00:10:32 folks jury panel is out we have our jury at this point we'll get them sworn in and get the initial instructions done in the morning any issues that we need to take up before we depart for the day
00:10:47 Mr. Bettinger?
00:10:50 I think if we could, Your Honor, if we could ask for a ruling on the sole exhibit issue, either later today or perhaps tomorrow morning, it's going to significantly impact our direct examination of Mr. Kroenke, whether that exhibit is coming in or not.
00:11:08 Okay.
00:11:08 And that's one of the exhibits that's in the binders or?
00:11:12 It's in both parties.
00:11:14 It's Defendants Exhibit A, Elliott's 2020 expenses.
00:11:19 The objection I made was pretty cursory.
00:11:22 Honestly, I don't think it gives the court the full picture of what's going on, and so we could right now fill the court in or at any time the court pleases.
00:11:32 Mr. Campion, do you have time?
00:11:33 I know you're doing – No, I have time, Reverend.
00:11:36 Okay.
00:11:41 Let me pull it out.
00:12:34 If it's exhibit you said exhibit a what's exhibit 14 in the in binder in volume two of plaintiffs exhibits So it's the first two pages and binder to them clerk
00:13:01 We took the deposition of Mr. Elliott and discussed this exhibit during the deposition.
00:13:17 Mr. Elliott's testimony at that deposition
00:13:32 His prior attorney, Mr. Larry Albert, wrote this exhibit.
00:13:39 And our position is that a lawyer is not permitted to affirmatively create evidence for their client and to submit it as a document for the jury to consider.
00:13:51 At the very least, Mr. Elliott will be unable to lay a proper foundation for this document.
00:13:56 Mr. Albert is not listed as a witness here and is not coming to testify.
00:14:02 I oppose this.
00:14:07 I'm going to seek to admit this evidence.
00:14:10 I believe Mr. Elliott can establish a foundation.
00:14:14 The story behind this is Mr. Albert typed this document up based upon information provided by Mr. Elliott about sort of what his expenses were during the 2020 mining season.
00:14:25 Mr. Albert didn't create this.
00:14:27 Mr. Elliott, I mean, he, Mr. Albert didn't
00:14:32 He may have typed it, and that's because Mr. Elliott doesn't have office support, office equipment to do it, and so it was generated at the direction of Mr. Elliott.
00:14:41 Mr. Elliott can lay a foundation and can explain the numbers and entries on the exhibit, and I believe there's a sufficient foundation for it to go to the jury.
00:14:50 The weight that the jury wants to give to it would be up to the jury.
00:14:53 I anticipate that that's where I'll leave it at, Your Honor.
00:14:58 I think the court shouldn't
00:15:02 And so I take it from what you're saying, Mr. Campion, that Mr. Elliott will be testifying about the numbers that are in this exhibit and providing personal statement that that's where they come from?
00:15:19 Yes, sir.
00:15:23 And was he questioned specifically about that in his deposition?
00:15:27 I'd have to refer to the deposition.
00:15:37 The plaintiff has no objection if Mr. Elliott wants to get on the stand, talk about what his expenses were, how much they cost, what his total was.
00:15:44 The objection is to putting into evidence, even within sight of the jury, a document that was 100% written by Mr. Elliott's prior lawyer.
00:15:54 How do we verify that these numbers were correct?
00:15:59 It's essentially
00:16:01 It's hears say at its best.
00:16:03 It's an out-of-court statement in writing made by Mr. Albert being offered to prove its truth Mr. Elliott can introduce records that he had during this expedition if he had any he can testify to his expenses, but he can't admit a list of expenses that someone else wrote for him and
00:16:26 But at least what I hear the offer being is that it isn't that somebody else wrote the document for him.
00:16:32 He wrote down the information that was provided to him.
00:16:35 Mr. Elliott is free to introduce information that he wrote down for somebody else.
00:16:40 That would be him writing it down.
00:16:42 I just don't understand how the defense with the position that they are presenting is going to be able to show the jury who wrote this.
00:16:54 What the data is based on, we're not able to cross-examine Mr. Albert on whether he influenced Mr. Elliott's presentation of these numbers, how he created the transition between what Mr. Elliott gave him, what he wrote down, whether he had Mr. Elliott proofread it.
00:17:10 Essentially, I mean, I'm not here writing evidence for Mr. Kroenke to admit into evidence, and Mr. Elliott's lawyers also lack that right.
00:17:26 I seem to recall, Mr. Bedinger, that there is a similar document.
00:17:30 I don't know whether it's part of your exhibits or not, but at least it was in part of the pretrial submissions along the way in the motion practice, a one-page document that summarizes your client's damages.
00:17:42 That's correct, and it was written by Mr. Kroenke.
00:17:45 And is it your intention to offer that document?
00:17:48 Mr. Kroenke will testify to its foundation in assuming there's no objection, then yes.
00:17:54 What's the difference, other than who typed up the document?
00:17:57 Well, that is the primary difference.
00:18:00 It's where who's responsible for gathering the information that's then converted into the document.
00:18:06 Mr. Kroenke gathered the information, he typed it up into the document.
00:18:10 It's almost like a chain of custody issue.
00:18:12 With Mr. Albert,
00:18:14 he's receiving the information from somebody but then on his own initiative he's typing it up and he's creating evidence for this case and he creates it after this case is filed he's creating it solely for the purpose of litigation and we're not we're not able to cross-examine him on why he created the information he used to create it whether his duplication of numbers from one sheet to another was accurate
00:18:40 We're essentially prevented from verifying the foundation of this document by the author not being present.
00:18:47 Campion, anything further?
00:18:49 Two things.
00:18:50 One, Mr. Elliott directed Mr. Albert to do this for the reasons I've already explained.
00:18:55 It's not that Mr. Albert did this at his own initiative, and it's not our position that Mr. Albert created evidence.
00:19:02 The document that's in question here is a summary of essentially
00:19:07 What Mr. Elliott recalls the expenses being during the 2020 mining season.
00:19:12 Whether it's admitted or not, I understand where the plaintiffs are going.
00:19:15 They're going to say, Mr. Elliott, whatever your expenses are, you don't have any receipts, right?
00:19:19 You heard in jury selection, Your Honor, that they're going to talk about the lack of receipts.
00:19:22 That's a fundamental issue here.
00:19:24 I don't believe that they're prejudiced by this in any way.
00:19:27 In fact, they're going to exploit Mr. Elliott's lack of receipts whether or not this document is in evidence.
00:19:32 If the court allows it to be submitted, it'll be subject to whatever argument is presented by plaintiffs.
00:19:38 And Mr. Elliott, his credibility as a witness, the credibility of his recollection is one of the central questions here regarding the dispute.
00:19:47 So I respectfully disagree with Mr. Benninger and ask the court to allow us to present that evidence.
00:19:54 So Mr. Bettinger, let me ask this question.
00:19:56 I mean, what's the difference if Mr. Elliott were to get up here on the witness stand with a whiteboard, which we used to do long ago, and simply write down numbers on a column in front of the jury?
00:20:07 That would be demonstrative.
00:20:09 It would not be in evidence, and it would not go back with jury deliberations, and the defense would not be able to refer to it as evidence.
00:20:15 It goes back to what Mr. Campion was just saying.
00:20:19 He stated that
00:20:21 Mr. Albert was not creating evidence.
00:20:24 He was just moving these numbers over.
00:20:26 This exhibit is being offered as evidence.
00:20:28 Mr. Albert created evidence, and that's the difference between this document and a whiteboard.
00:20:39 Okay.
00:20:39 Well, I understand the party's positions.
00:20:43 Let me think about it frankly.
00:20:46 I'll get your decision first thing in the morning, if not before then.
00:20:49 Thank you.
00:20:50 Thank you, sir.
00:20:57 I should ask before I send everybody away any other housekeeping issues that we ought to address today and then we'll be planning on jumping right into evidence tomorrow 830 to 130 so see you all in the morning
00:21:14 would consider when the jury comes in tomorrow morning, ask them if they've done any research or spoke to anybody about this case between today and tomorrow.
00:21:23 I plan to give them an instruction certainly that talks about no research and because of the fact that we have not yet sworn them in, I will double check and make sure.
00:21:33 Thank you, sir.
00:21:34 All right.
00:21:35 Thanks, everybody.