Litigation

1. Litigation College of Nursing December 13, 2006 John O. Cates

2. How often and why are faculty members sued? We currently have three pending suits, and this is probably below average for UAH. We have at least three threatened lawsuits. Faculty members are sued for a wide variety of issues. Employment discrimination, sexual harassment, retaliation, tenure or promotion decisions, student trips, negligence, alleged criminal conduct, research activities, and intellectual property claims.

3. Suit begins with service of a summons and complaint. • Bring it to the Office of Counsel as soon as possible. • If the plaintiff’s lawyer serves it on our office, we will accept service for you.

4. Sovereign immunity • That the State of Alabama shall never be made a defendant in any court of law or equity. Const. of Alabama, Article I, § 14. • Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). • 1. Suits against the State. • “In Hutchinson, supra, this Court addressed whether the State, acting in its proprietary function, was entitled nonetheless to assert its immunity. Answering in the affirmative, the Court spoke as follows: “The wall of ‘governmental immunity’ is almost invincible, made so by the people through their Constitution as interpreted by this Court. Our cases are clear that the operation of a hospital is a ‘governmental function,’ but even if we should classify the operation of University Hospital as being a ‘business function,’ nevertheless, the State could not be sued.” 288 Ala. at 24, 256 So.2d at 284.”

5. Sovereign Immunity – Continuing Cranman • 2. Suits against ‘state agents.’ • “We therefore restate the rule governing State-agent immunity: • A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's • (1) formulating plans, policies, or designs; or • (2) exercising his or her judgment in the administration of a department or agency of government, … • (5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in … educating students.”

6. Sovereign Immunity – Continuing Cranman • “Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity • (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or • (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” • 11th Amendment Immunity.

7. The Office of Counsel will defend you. • If necessary, specialists in a particular area of law will be hired. • You have the right to hire your own attorney, at your expense. • The Comprehensive General Liability Program.

8. Advice for a pending lawsuit You will be requested not to speak to the press. • You will be cautioned about getting into conversations concerning the subject matter of the litigation. • - When talking to people who may have a relationship with both the plaintiff and with you, you will have to assume that things that you say will be repeated to the plaintiff’s lawyers. • - When approached by people you do not know, you have to be aware of the possibility of private investigators, recording, etc.

9. More advice for a pending lawsuit • You will be advised about the importance of the attorney client privilege. • - For example, a conversation concerning the subject matter of the litigation between you and the Dean is not privileged and may be the subject of discovery deposition by the plaintiff’s lawyers. • - If a lawyer is present when you talk to the Dean, the conversation is probably privileged. • You will have to gather all documents that you are aware of that may be involved. • You will be under a duty to preserve documentary litigation materials, including emails.

10. You may be surprised by the “discovery phase” of the litigation. • Many defendants think that the case brought against them should be ‘thrown out’ by the Judge, but there usually is no chance of that until after the “discovery” process. • At trial, only evidence that is “relevant” may be admitted. • In discovery, the plaintiff is entitled to obtain discovery on any matter, not privileged, which is “relevant to the subject matter,” or which is “reasonably calculated to lead to the discovery of admissible evidence.” Judges tend to view this standard expansively. This standard may lead to a surprisingly large number of documents, and other materials, that have to be gathered. ‘Impeachment’ evidence may be discoverable and admissible.

11. Time consuming matters • Depositions. • Mediation. • Trial. • Post trial and appeal.