Francis J. Manion and Geoffrey Surtees

Despite the important role litigation plays in our society -from the private personal injury case to the constitutional challenge of a statute -many people do not realize the resources and work that goes into a lawsuit. It takes much more than suing someone one day and then showing up for trial the next. Unfortunately, a law suit is a long, drawn out process which, on the average, takes years to conclude. But, despite the complicated nature of the legal process, there is nothing mysterious about it. To give you, our supporters, a better idea of the work we do, and provide you with a-clear picture of where your financial support goes, we thought it would be beneficial to provide a paradigm of what goes into one of our cases: the research we conduct, the papers we file, and the preparation for trial. Below is a breakdown of the steps we took in the important case of Kimberly Mills v. ABC Healthcare, which settled out of court last month (due to the settlement agreement, described below, we have replaced the name of the real defendant with a fictional one). Remember as you read this that Kim Mills, a single parent of an adopted son, did not have to pay a dime for the legal services we provided her. This is because of the generosity of our supporters.

I. CONTACT: In the Fall of 1996, Kimberly Mills contacted our office for legal assistance. Kim, a nurse and home health supervisor in Kentucky, suspected she was going to be fired from ABC Healthcare for handing out a Kentucky Nurses for Life pamphlet to her colleagues at work. Sure enough, on December 5, 1996, Kim's employment with ABC was terminated. Kim was told directly by her supervisor that she was fired for "distributing pro-life literature." Kim believed that her rights were violated and wanted our help to vindicate this wrong. The first task to be accomplished was some preliminary research: did Kim have a legal cause of action against ABC? It is important to remember that not every wrong gives rise to a legal cause of action. In order to sue another person, corporation, governmental body, etc., one must be able to point to a statutory, administrative, or constitutional right that has been violated by the defendant. If no such right exists, then one has no case. Fortunately for Kim, we could point to an applicable statutory right we believe was violated. Kentucky has a law, K.R.S. § 311.800, which makes it unlawful for an employer to take disciplinary action against any person "because of any statement or other manifestation of attitude by [a] physician, nurse or staff member or employee with respect to abortion.”

In the absence of this statute, Kim would not have any viable claim against ABC. Many people do not realize that private persons and corporations cannot violate the first amendment right to free speech, or any constitutional right for that matter. The first amendment, according to judicial interpretation of the 14th amendment, only applies to governmental bodies, such as cities, states, the federal government, and those acting on behalf of a governmental body. Because ABC was not a governmental entity, or supported by a governmental entity, it did not, and could not, violate Kim's first amendment right to distribute pro-life literature.

Hence, the only claim we had against ABC was the alleged violation of the Kentucky statute. Once this preliminary research was concluded we decided that we should take Kim's case.

Deciding whether to take a case is not always an easy task. We not only have an obligation to consider whether the case poses a colorable claim under the law, we must be sure that the case advances the interests of the New Hope Center and its supporters. We believed Kim's case met these criteria. Once the complaint has been filed with the court, and the defendant has received the complaint, the lawsuit is said to have commenced. Before drafting and filing and serving a complaint, many questions have to be answered. What court should the case be filed in: state or federal? Who should be named as the defendants? What legal claims can be brought against the defendants? Much legal research and strategizing goes into answering these questions. Because the complaint shapes the nature of the lawsuit, it is critical that the complaint state everything that needs to be alleged.

In Kim's case, we filed the lawsuit in state court because of the state statute we believe ABC Healthcare violated in firing Kim. We named as the defendants the ABC Corporation itself, Kim's supervisor, and a series of individuals whose names were not known when the complaint was drafted. The complaint was filed in state court on June 18, 1997.

IV. DISCOVERY: Before going to trial, each side is entitled to find out as much relevant information about the other side as possible. Discovery is conducted by means of two basic procedures: interrogatories and depositions. Interrogatories are a series of questions one side submits to the other to be answered. Answers to interrogatories provide basic facts of the case and any relevant documents the other side is entitled to consider.

II. UNEMPLOYMENT APPEAL: The first legal skirmish we conducted on behalf of Kim was to represent her at an unemployment appeal. This appeal was taken from the decision of an unemployment hearing below which denied Kim any unemployment benefits. Kim was denied these benefits because ABC Healthcare convinced the lower presiding referee that she was fired for misconduct. We represented Kim at the appeal. Armed with the Kentucky abortion statute, and a pile of case law, we convinced the referee conducting the appeal to overturn the decision below and grant Kim the unemployment compensation she deserved. This was an important milestone decision along the path of vindicating Kim's rights. Even before the complaint was filed, we were able to help Kim right the wrong that was committed against her.

III. THE COMPLAINT: Every lawsuit begins with a complaint. A complaint is a legal document that is filed with the court and is "served" on the defendant. The complaint indicates who is filing the lawsuit (the plaintiff), who is being sued (the defendant), and why the lawsuit has been filed. Unlike interrogatories, depositions are oral statements of parties and witnesses taken under oath, usually in a face-to-face question and answer session with the attorney. Depositions provide attorneys with the opportunity to observe the demeanor of the parties and witnesses, their conduct in answering questions, and, most importantly, they provide answers to questions that need to be answered. The discovery process brings to the surface important facts that can be used at trial.

In Kim's case we submitted interrogatories for the other side to answer and took the deposition of the defendants and relevant witnesses. The most important fact we learned through discovery in Kim's case was that none of the employees of ABC Healthcare knew that the Kentucky abortion statute protected healthcare providers like Kim. In fact, ABC Healthcare did not even know the statute existed! With this important piece of information in our arsenal we were confident as the case progressed to trial.

V. SUMMARY JUDGMENT: A motion for summary judgment is a pre-trial motion made by one or both sides to the court to have their side declared the winner. To grant a motion for summary judgment, and thus end the case on behalf of one side or the other, a judge has to be convinced of two things: (1) that there are no important questions of fact for a jury to decide, and (2)that the petitioner is entitled to judgment as a matter of law.

In Mills v, ABC Healthcare, ABC filed a motion for summary judgment arguing that the abortion statute was unconstitutional under the Kentucky constitution. ABC knew that if they could convince the court that the statute was unconstitutional, then Kim would lose her case, Remember, the only legal cause of action Kim enjoyed was this statute, and if the statute were declared unconstitutional and unenforceable, Kim's case against ABC would have to be dismissed. After ABC filed its motion for summary judgment, and we filed our written response, an oral argument was had before the state court judge. The oral argument allows the judge to ask direct questions of the attorneys; and the attorneys are given the opportunity to persuade the judge of their position,

A month after the oral argument, the judge handed down his ruling, in which he denied ABC's motion for summary judgment. In winning this pre-trial skirmish, we did more than advance Kim's case against ABC, we upheld the constitutionality of a state statute which protects pro-life healthcare employees like Kim Mills. This was the second important milestone along the path to concluding the case in our client's favor and in favor of pro-life healthcare workers in general.

VI. TRIAL PREPARATION: Once discovery has been completed, and motions for summary judgment filed and decided, then work begins on the final stage of the case: the trial. Preparing for trial is an arduous and painstaking task. It demands outlining direct examinations of friendly witnesses and cross examinations of hostile witnesses, and demands the gathering of evidence and testimony given during discovery. The most important part of preparing for trial is planning the trial strategy. This entails thinking of what ways an attorney can persuade a jury that their side should prevail.

In Kim’s case, we had to prepare numerous exhibits, including the Nurses for Life brochure, the letter from ABC indicating that Kim was fired because she distributed pro-life literature, and a copy of the statute we argued ABC violated in firing Kim. We also had to sort through the depositions of Kim’s employer’s and fellow employees to find those statements most helpful to our side. The trial was slated to begin on the Monday after Thanksgiving.

VII: ~-SETTLEMENT: One week before the trial was to start, ABC contacted us about settling the case out of court. Contrary to what most people think, settlement is not about compromising one's beliefs or the rightness of one's cause. It is strictly a mutually beneficial arrangement struck by both sides to determine the best resolution of the case. Of course, no out of court settlement is permissible unless the client whom the attorney is representing agrees to the settlement. ABC made an offer of settlement that we, with Kim's whole-hearted agreement, accepted. In the words of Kim, the settlement was "a blessing." Kim has been recompensed for losses, and our demand against ABC has been satisfied.

Due to the terms of the settlement agreement, we are unable to divulge certain specifics. Instead, we are obliged to mention that ABC admits no liability and that both sides are satisfied with the resolution of the case.

This case, an amazing victory for a prolife nurse, was made possible through your support. We were with Kim from before the moment she was fired by ABC until the settlement of the case last month -a three year relationship. During this lawsuit we were able to get Kim the unemployment benefits she deserved; defend the constitutionality of the Kentucky abortion statute; and get Kim what she demanded of ABC in her complaint. This is a great victory for Kim, for pro-life healthcare professionals everywhere, and for our supporters who make cases like these possible.