Later this week the jury in Gibson Bros. v. Oberlin College should get the case.

I wanted to put down some thoughts as Verdict Day approaches.

Dan McGraw has done an excellent job keeping us all informed. Here are links to our trial coverage:

I’ve also followed the trial accounts in the local Chronicle-Telegram. That said, there’s no substitute for being in the courtroom to observe witness demeanor, feel courtroom atmosphere, and sense the ebb and flow of a trial.

I’ve tried really hard not to make predictions, and I’m sticking to that. In my 22 years in private practice before joining Cornell, I won cases I should have lost, and lost cases I should have won. This case could go either way.

Within the limitations of our ability to know, I’ve come away with some overall impressions, in no particular order:

First, from the start of this case I have questioned the aggressive and demeaning attacks on the Gibsons as a defense strategy. There is no evidence that the Gibsons did anything wrong, unless you consider stopping people from stealing something wrong. That lawful act of protecting one’s property nonetheless has devastated a 5-generation business because of Oberlin College racial politics. Gibson’s Bakery survived two World Wars, the Depression, the turmoil of the 1960s, and the so-called Great Recession, but it may not survive Oberlin College’s social justice warriors and their faculty and administrative enablers. If the jury understands this, the other pieces of the case fall into line, factually and legally.

Second, I never cease to be amazed at the arrogance of the college community as reflected in the defense that Gibson’s Bakery was close to worthless. It’s the arrogance of the credentialed. A business that is in its 5th generation, and that currently supports three of those generations, is something of value. A business that employed almost a dozen local employees prior to this incident is something to value. Ultimately the jury will have to put a monetary value on the dramatic drop in business, and the loss of reputation of the individuals, but to demean the business the way was done is maddening.

Third, and related, it doesn’t seem that the defense has provided the jury with a reasonable middle ground of damages as an alternative to the plaintiffs’ 30-year $5 million plus damage theory. That could be a mistake, leaving a jury that finds liability with little choice but to award the higher amount if it dismisses the $35,000 defense theory. While the jury could do its own math, I never like to let the trier of fact do math.

Fourth, the college community has moved on. This is history to them, it’s the present and the future to the Gibsons. The jury may put themselves in the Gibsons’ shoes.

Fifth, if the defendants win, it will be based on the technicalities of the law. The Gibsons survived summary judgment and a motion for a directed verdict. But it’s not over. The jury form could be critical. Will there be a general verdict as to each count, or will there be detailed jury interrogatories running through the elements of each claim? The plaintiffs likely want the former, the defense the latter. The defense hope is to make technical arguments as to various elements, the plaintiffs’ hope is to win the big picture.

Sixth, as an aside we haven’t covered yet, Lexington Insurance Company sought to intervene to seek specific jury interrogatories that could help determine whether insurance coverage applies. The judge rejected that request. To the extent the jury finds the defendants engaged in intentional torts, that could bust insurance coverage.

Seventh, it didn’t have to get to this. The college could have made it right by standing up to the student activists who made false and defamatory accusations against the Gibsons. But standing up to student activists seems to be the hardest thing for college administrators to do at Oberlin College and many other campuses.

Eighth, if the defendants win, or the verdict for the plaintiffs is small, the wrong lessons will be learned. It will reinforce the attitudes that led to false charges of racism and attempts to destroy the Gibsons’ business as if the Gibsons’ lives were toys to be played with as part of a campus-wide group therapy.

Ninth, thank goodness there are lawyers who are willing to take these cases. I don’t know on what basis the plaintiffs’ lawyers were retained, but I assume it is a contingency fee. Unfortunately, some of the seedier contingency fee lawyers give everyone a bad name, but the contingency fee can be the great equalizer.

Tenth, and last for now, this case is something of a metaphor for liberal arts higher education, and the disconnect from the lives of most Americans. Like the protest sign says, “This Runs Deeper.” The personal feelings of social justice warriors took precedence over the facts and the real lives of people in the community.

[Note: The title was changed after initial publication.]

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