A Trial Twelve Years in the Making: After victory against anti-abortion groups, NOW lawyerrecalls the long battleAuthor(s): JILL SCHACHNER CHANENSource: ABA Journal, Vol. 84, No. 6 (JUNE 1998), pp. 38-40Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840281 .

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H?M NEWS

A Trial Twelve Years in the Making After victory against anti-abortion groups, NOW lawyer recalls the long battle

Fay Clayton calls the case the highlight of her career and appreciates husband Lowell SachnofPs aid.

BY JILL SCHACHNER CHANEN

It has been 12 long years since

Fay Clayton volunteered to help the National Organization for Wom en in a groundbreaking lawsuit against two anti-abortion groups. In that time she has worked for three law firms, married, argued the case before the U.S. Supreme Court and tried the suit to a jury, paired with her husband as a trial partner.

It was a hard-fought pro bono case. "If I would have known it was

going to last that long, I would have been overwhelmed," she says. "But you just do it bit by bit."

A Rewarding Verdict Yet Clayton, a principal in the

Chicago law firm of Robinson, Cur ley & Clayton, has no regrets. In fact she says her April trial victory is the highlight of her career. A federal jury awarded some $86,000 apiece to two women's health clin ics, an amount that may be tripled under federal law.

The lawsuit, brought under the

Racketeer Influenced and Corrupt Organizations Act, alleged that two anti-abortion groups and four of their leaders conducted a campaign of intimidation against the clinics and their patients. Among the de fendants were the Pro-Life Action League and its executive director Joseph Scheidler; and Operation Rescue and its president, Randall Terry, who set tied before trial.

Clayton, a respected civil rights and commer cial litigator, was brought into the case as local counsel in 1986 and took over as lead counsel two years later, she says, when Morris Dees of the Southern Poverty Law Center withdrew from the position because he realized the lawsuit most likely would extend be yond the year he had allotted for it.

"We took this case to protect the constitutional rights of the regular folks in the community," Clayton says. "It is as important to

them as it is to me." Scheidler also pro

fesses to be buoyed by the verdict, which has brought offers of help from hundreds of new

supporters as well as several requests for him to speak. "I am more en

thusiastic than ever," he says. "I think it will be a

catalyst for the pro-life movement."

Scheidler claims he has learned that federal legislation is being pre pared that would bar the use of the racketeer ing statute against pro testers, "rico has been used and abused, and maybe now we will get some restrictions on it," he says.

The case almost died several times along the circuitous route to trial. A federal district judge had dismissed the suit shortly after it was filed, holding that rico applies

only to organizations motivated by economic gain. An appeals court affirmed.

In 1994, the U.S. Supreme Court breathed new life into the case, ruling that an economic mo tivation is not a requirement for a lawsuit under Rico. National Or ganization for Women Inc. v. Scheid

ler, 510 U.S. 249. That was not

'If I would have known it was going to last that long, I would have been overwhelmed."

?Fay Clayton

the end of the obsta cles, however. Clay ton charges that the defendants tried to overwhelm and in timidate NOW law yers with such tac tics as requests for delays, a 185-person witness list and per sonal attacks.

Clayton makes particular mention of a fund-raising let

ter for Scheidler's Chicago-based Pro-Life Action League that brand ed her "a hard-core, militant femi nist." While she dismisses that characterization as "juvenile be

38 ABA JOURNAL / JUNE 1998 ABAJ/ROBERT A. DAVIS

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havior," she admits fearing the mailing could spur an attack on her. As a result, she sought expert advice on personal security.

"It reflected badly on them and their movement," Clayton says of Scheidler's remarks. "I never expe rienced anything like that before."

Scheidler, on the other hand, makes no apologies for the letter and says it aptly describes Clayton. He says he nonetheless respects anyone with "fire in the belly."

On the eve of trial the defen dants tried to persuade U.S. District Judge David Coar to postpone the case, claiming they were prejudiced by adverse pretrial publicity and were not ready to proceed. "Fortu nately the judge was no-nonsense," Clayton says. "He told them 12 years was long enough to prepare."

To complicate matters, just three weeks before the trial started, Clayton's co-counsel withdrew from the case for personal reasons, leav ing the team scrambling for a re

placement. She did not have to look far.

Lowell Sachnoff, Clayton's husband and one-time law partner, stepped in at the last minute. "It is not as

though he did not know about the case," Clayton says, noting that he had served as a coach for her U.S. Supreme Court appearance. Sach noff is a securities lawyer with Chicago's Sachnoff & Weaver.

A Changing Defense Roster Trial assignments often were

the result of who could ready them selves for the constantly changing array of defense witnesses. Clayton says the defendants continued to add new witnesses and delete oth ers from their roster throughout the trial, often on as little as 24 hours' notice.

As a result, the plaintiffs team had to cross-examine many defense witnesses without the benefit of depositions. Instead, they relied on old-fashioned ingenuity and a lot of online searches for impeachment.

For example, after one of Op eration Rescue's leaders testified about his background, Sachnoff smelled a lapse in his r?sum?. He learned from an online search that the witness had testified in an un related suit. Sachnoff produced a

deposition from the prior case, forc ing the witness to confirm his omis sion?a seven-year stint as a used

car salesman.

"I told the jury that this man's

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ABA JOURNAL / JUNE 1998 39

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NEWS

testimony was a little like the clock that struck 13. If it strikes 13, you better be concerned about all the other hours it chimes," he says.

Sachnoff took a similar tack with U.S. Rep. Henry Hyde, R-Ill., who was called in at the last minute to testify to Scheidler's rep utation for truthfulness, integrity and nonviolence.

Sachnoff showed the House Ju diciary Committee chairman a let ter to one of Scheidler's supporters, which had been obtained through discovery, in which the anti-abor tion crusader called a photograph of a bombed clinic "a great scene."

Noting Scheidler's words, Sach noff pressed Hyde, who himself had denounced violence at abortion clinics, about his friend's integrity. "Hyde said that he did not think Scheidler really meant it, even though he had earlier testified that Scheidler meant everything he said," Sachnoff says.

Scheidler now wants to set the record straight, however, claiming that the comment was taken out of context. Pictured were 12 anti abortion activists who called a press conference in front of the clin ic to denounce the bombing. He says he was referring to the ac tivists when he called the photo "a great scene."

Hyde's own words tripped him up later in the cross-examination, when he made a controversial re mark in which he appeared to com pare abortion clinics to Nazi con centration camps.

"What he really meant was that if the people of Germany had the courage to stand in front of con centration camps, that maybe so

many people would not have been killed there," Sachnoff explains. "But you could see the jury cringe when he made that remark."

A Helpful Trial Partner Clayton's work is not over,

since the the defendants have vowed to appeal. For now, she is glad the trial is behind her and is grateful for her husband's help. "If we did not like each other we

might have gotten on one another's nerves. But I have such respect for him as a trial lawyer."

She does not intend to calcu late how much time she has devot ed to the pro bono case. "I have no clue on how many hours were spent," she says. "And I am not sure I want to know."

Not So Plain English In many states, jury instructions are confusing

Judge William Caprathe says that in the past Michigan judges were embarrassed to give jurors instructions "because they were so wordy and so ridiculous."

BY MICHAEL HIGGINS

One

man was dead, beaten to death with a baseball bat. Two

young brothers, 24 and 22, were on trial for murder. And it was up to a

jury in Riverside, Calif., to sort out what happened and apply the law.

But the law wasn't helping. The jurors struggled to understand the judge's instructions. Never in a normal conversation had they heard words such as "premedita tion" and "malice afore thought." Even the word "conspiracy" conjured up images of spying, not murder.

"We kept going back to the judge, ask ing 'What does this

mean? What does that mean?'

" recalls Sherry

Wilson-Carothers, jury forewoman in the 1995 case. "It was always

given back to us, Tou make that determination.' And then we're told we can't use a dic tionary, because the legal definition is different than Webster's."

Their deliberations dragged on for three weeks, longer than it had taken to hear the evidence. "No

body could nail definitions on the head," Wilson-Carothers says.

A Simple Idea Gets Lost Nationwide, jury reform is all

the rage. Prompted in part by dis may over the verdict in the O.J. Simpson criminal trial, many states are looking anew at whether to let jurors take notes, ask questions or hear jury instructions at the start of

the trial.

?????IB??????l

Sherry Wilson-Carothers: Unclear terms a problem.

But in all that pro gressive spirit, a more

important reform may be getting lost: writing the jury instructions in plain, clear English.

Simple instructions are popular in principle. The ABA House of Del egates endorsed the idea in February when it adopted the Civil Trial Practice Standards of the Section of Litiga tion. But with few ex

ceptions, such as Michi gan's revamp of criminal jury in structions in the early 1990s, states aren't moving to plain language.

"It's one of those things," says G. Thomas Munsterman, director of the Center for Jury Studies at the National Center for State Courts.

40 ABA JOURNAL / JUNE 1998 abaj photos by kent miller and jim caccavo

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