I attended court today as the lawyers argued pre-trial motions.

As most trial lawyers know, pre-trial “in limine” motions can often decide the case. What the judge excludes and what they allow, how to define certain terminology the jury will hear, and rulings what is important and what is nonsense.

You know, like deciding which of the terms “collusion” or “conspiracy” is more legal and meaningful than the other.

Today in Elyria, Ohio, Lorain County Common Pleas Judge John R. Miraldi ruled on about a dozen motions to exclude or allow certain evidence to be put before the jury. This lawsuit is an unusual one, in that a small local business, Gibson’s Bakery, claims the small liberal arts institution of higher learning, Oberlin College, defamed and libeled them with their participation and backing of a protest (and the aftermath) in early November of 2016.

This protest came about after three African-Americans were arrested for stealing wine from Gibson’s. The mess afterwards was a big student protest where the store was accused of being racists for pursuing the shoplifters and being in favor of prosecution.

Gibson’s is claiming the school did not just act as overseers of their students’ safety, but as active participants in the protest, including the passing out of flyers which claimed the little store was “racist.” And they want the school to pay them a large amount for the damage to their business and reputation in the community.

The three accused of shoplifting eventually plead guilty and read a statement in court that “racial profiling” never occurred.

For more background, see my preview post, Previewing Gibson’s Bakery v. Oberlin College trial: ‘Social Justice’ free speech or defamation?

So in this case, the jury will likely decide their verdict largely by their view of which side can be more trusted in their arguments. In these motions decided yesterday, the judge was very clear in his view of how this case will proceed: evidence of an individual’s “character” traits will not be allowed for the most part. Evidence of overall “reputation” in the community will be allowed.

“There are character issues at play in every person, but character evidence has to go to a specific trait,” Judge Miraldi said. “Reputation is central to this case, and character traits [that are] unrelated to the issues are not. It is the community’s perception of a business and school that are important, not traits of an individual that are unrelated to the events that happened.”

Because of that way of thinking, Judge Miraldi severely limited the use of Facebook posts and text messages which both sides wanted to use.

Oberlin College had gone through Facebook posts from the businesses ownership and employees to find evidence of racial and community derision in them. Most of them were from Allyn D. Gibson, the family employee who was working the day of the shoplifting and scuffled with them outside the store.

Oberlin College found some posts he made about five years ago where he posted some comments about the problems Oberlin College student shoplifters in the store had caused, on safety and crime issues regarding some students, and some posts where he indicated he had a temper. Most of these were in 2012.

The judge ruled post specific to the events were relevant and could be used as evidence by either side, but those that just speculated on a person’s random thoughts on a variety of unrelated issues could not.

Judge Miraldi also ruled the plaintiffs desire to use multiple Facebook and text messaging from the Oberlin College’s students and professors were also out of bounds for the most part. Mainly, the judge said, because the court and the jury couldn’t determine which ones were expressed as official business communications from the college, while others might have been just small talk.

“How do you determine whether there was a state of malice in the reason they sent the text message or emails, and then what was just an opinion sent to a friend or acquaintance,” the judge said. “The problem will be determining which [Facebook Posts], emails and spoken words are part of the college and which are just the opinions of a professor or employee.”

What the judge ruled is that most of these “opinion” postings will not be able to be presented to the jury, unless the ones who created the opinions are testifying in court. In other words, he will resist the ability for either side to bombard the courtroom with a huge amount of accusatory statements in this present-day world of excessive online communications.

There was one other fascinating, little data point that will be kept out of court – and I purposely saved this for last. That would be the details in negotiations between the Oberlin College and Gibson’s Bakery before their suit was filed in late 2017. Oberlin said it wanted to present as evidence the letters sent to the school to settle things up, and how much Gibson’s wanted from the school monetarily for such a settlement. Gibson’s objected to the negotiations being used as evidence. The judge agreed. “I am not going to permit any evidence of negotiation for a settlement,” he said, adding that “you can’t begin settlement [talks] without a demand.”

More “in limine” motions to be decided Wednesday, before the jury trial is schedule to start on Thursday.

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1

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WAJ Note: We will have end-of-day wrap ups every day, starting with pre-trial motion arguments on April 30 and May 1, and jury selection and trial starting May 2. There will be weekly wrap-ups on weekends. Of course, we will report on the verdict. The trial is expected to take one month. This is a project of the Legal Insurrection Foundation. Your support to make this type of coverage possible is appreciated.

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