…

                                                                                Duke University
                                                                                 School of Law
                                                                                      Box 90360
                                                              Durham, North Carolina 27708-0360

Doriane Lambelet Coleman                                                     Telephone (919) 613-7075
Professor of Law                                                                Telefax (919) 613-7231
                                                                              e-mail: dlc@law.duke.edu




                                       June 28, 2008


MEMORANDUM FOR THE CLASS OF 2011

Re:   Materials for LEAD Week, Orientation Session on "Making the Most of Class"
______________________________________________________________________________

Welcome to Duke Law School! The faculty looks forward to your arrival for LEAD Week on
Monday, August 18, and to the beginning of classes on Monday, August 25. In particular, I look
forward to meeting you at our orientation session on making the most of class, which is scheduled
for Friday, August 22.

As you may already know, cases will comprise most of your reading assignments during your first
year in law school, and most of your class sessions will either focus on or derive in substantial part
from those cases. One of the initial hurdles all first-year law students face is how to read cases
effectively. Among other things, this requires learning what professors expect that you will know
and have thought about when you come to class each day; how to sort relevant from non-relevant
information; how to classify relevant information; and otherwise how to engage intellectually in the
material. This orientation session is designed to give you a head start on this learning curve, and
to help you to begin to work effectively from the very first days of class.

In preparation for this session, please read the materials that follow. Part A sets out the traditional
civil trial and appellate process which governs the procedure through which a case travels. Part B
provides a classic template to develop a case brief that properly includes both procedural and
substantive components. Part C sets out a case, Paula Corbin Jones v. William Jefferson Clinton,
which provides you an opportunity to work with the briefing template set out in Part B. A more
specific assignment in connection with this case is set out in the introduction to Part C. Our
orientation class session will be based primarily on this assignment.
A. THE CIVIL TRIAL AND APPELLATE PROCESSES

The Federal Rules of Civil Procedure, about which you will learn in detail when you take the
procedure course in the fall, establish the process through which litigants in civil cases must
proceed. Because cases always arise at the intersection of substance and procedure--that is, at a
particular point in the process and based on a particular legal rule or set of rules--it is essential that
you are familiar at the outset with the basic outlines of that process. Here it is, in summary and list
form. Note that I have highlighted those stages of the process that involve either dispositive motions
(motions that on the basis of existing law may dispose of the case entirely if the judge grants them)
or other stages involving decisions of law that you will see reviewed most often in law school
casebooks:

PRETRIAL PROCESS

1. Plaintiff's Complaint

2. Defendant's Answer or Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim

3. Plaintiff's Response to Motion to Dismiss

4. Defendant's Reply to Plaintiff's Response to Motion to Dismiss

5. Discovery (e.g., Interrogatories, Depositions, Requests for Production of Documents and Things,
etc.)

6. Plaintiff's and/or Defendant's Motion for Summary Judgment

7. & 8. Responsive Pleadings

TRIAL

9. Opening Arguments

10. Plaintiff's Case in Chief

11. Defendant's Rebuttal to Plaintiff's Case in Chief (Cross Examination)

12. Plaintiff's Redirect

13. Defendant's Motion for a Directed Verdict

14. Plaintiff's Response

15. Defendant's Case in Chief

                                             Page 2 of 15
16. Plaintiff's Rebuttal (Cross Examination)

17. Defendant's Redirect

18. Defendant's and/or Plaintiff's Motion for a Directed Verdict

19. Responses

20. Closing Arguments

21. Jury Instructions

22. Jury Deliberations and Verdict (or Judge deliberations if Bench Trial)

23. Defendant's and/or Plaintiff's Motion for a Judgment Notwithstanding the Verdict, or Non
Obstante Verdico (JNOV), and/or for a New Trial

24. Responses

25. Final Decision of Trial Court

26. Appeals from that Final Decision to the Intermediate Appellate Court on Issues of Law or
Clearly Erroneous Factual Findings (including brief of Appellant, response of Respondent, reply of
Appellant, oral arguments, and decision of court)

27. Appeals to the Supreme Court on Issues of Law (same)

B. BRIEFING CASES

Throughout your lives as law students and lawyers, or at least while you are engaged in reading
cases, you will be "briefing" cases. That is, you will be reading them to discover their various
formally identifiable parts, and in most cases you will be reducing them--making them brief--so
that they are easier to work with.* Over time, you will acquire your own style of briefing cases, but


         *
             Commercial materials are available that contain "canned" or already-prepared briefs. It is my strong
recommendation that you resist relying on such materials. While they may be helpful either when you have not had
adequate time to prepare or when you are not sure you understand a case, relying on them consistently and in lieu of your
own preparation will retard the development of your ability to read and especially to synthesize case materials. Because
this is a big piece of what lawyers do in practice, the development of these skills is not optional. And it is certainly not
something you want to tackle for the first time when you are out of law school, when there are no more canned or
prepared briefs available, and when you are on someone else's payroll. "Book briefing," or making margin notes, is
sometimes recommended by commercial materials in lieu of preparing full case briefs. Whether this is an adequate
strategy depends largely on the individual student/lawyer, her ability accurately and comprehensively to retain
information that is not captured in the margin notes, and the eventual uses of the case material. In other words, book
briefing works for some people sometimes, but not for everyone or for all purposes.

                                                     Page 3 of 15
even then, there are formal parameters that you will follow. This is necessary (and thus even if you
are a free spirit you will toe the line) because law professors and other lawyers talk in a jargon that
comprises in part the elements of a case brief, and you will need to communicate with them.

The standard or formal elements of a brief, indeed of all legal analysis, is often helpfully broken
down into the acronym "IRAC." IRAC stands for Issue, Rule, Application, Conclusion.
Specifically, IRAC requires that from a given "fact pattern," or set of factual circumstances, the
lawyer derive the issue or issues to be resolved, find or develop the law or legal rule that is or should
be used to address the issue(s), apply the rule to the facts, and reach a conclusion as to how the
issue(s) is/are to be resolved. I am not being dramatic when I tell you that what I have just written
comprises much of what you will be doing in every course throughout law school and otherwise
throughout your legal careers: Every case you analyze or "brief," and every memorandum, brief, or
opinion you write, will follow a version of this paradigm. As a threshold matter, IRAC assumes that
the facts or factual background of a case have already been presented. For purposes of case briefing,
however, it is essential always to have ready a good statement of the relevant facts. And so if you
wish, you may refer to the briefing paradigm as FIRAC instead. FIRAC breaks down this way:

1. (F) The facts of the case, also called "factual background" or "underlying facts."

This is the underlying dispute that gives rise to the lawsuit. The case facts in this respect are to be
distinguished from the Procedural History (PH) of the case, that is, the facts that describe the course
of the litigation once it has been initiated. You will, from time to time, be asked by your professors
to provide the procedural history of a case.

Note that proper legal analysis requires that you cull from the facts presented only those that are
relevant to the issue(s) presented. For example, if the raw facts tell you that A (who punched B in
the nose) is 34 years-old and B is 33, it is likely that as a legal matter, their ages will be irrelevant
to the analysis of whether B will be successful in his suit against A for battery. While such facts
may have some emotional appeal, they can and most often are omitted from the formal discussion.

2. (I) The legal issue that is implicated by those facts, also called "question presented."

Lawyers, and certainly your professors, will sometimes break this component down and distinguish
between the "procedural issue" and the "substantive issue" in the case. In a nutshell, the procedural
issue is the question that arises relating to the stage of the trial or appellate process at which a
substantive issue was disposed of; e.g., if the trial court dismissed the plaintiff's case on "summary
judgment" and she appeals the case based upon that dismissal, the issue would be whether the judge
correctly granted summary judgment under the applicable law. The substantive issue or question
relates to the underlying claim itself; e.g. if the case that was dismissed involved a claim for battery,
the issue might be whether the plaintiff made out the prima facie case or elements of that claim as
required under applicable law.

3. (R) The rule of law that is or should be used to address the issue, also called "law" or
"applicable law."

                                             Page 4 of 15
It comprises the law as it exists and that the court must use to resolve the case, unless it is entitled
and willing to change that law. Existing law for this purpose includes applicable constitutional (state
or federal), statutory (state or federal), and judicially pronounced or common law. The law as it has
been articulated in prior cases is often called "precedent" or "applicable precedent."

Developing the ability to identify and describe the applicable law is part of what your legal training
will be about. Correspondingly, where the law is not entirely clear, or where it might be subject to
modification, your legal training also will involve developing the ability to argue convincingly that
the court should adopt your position (rather than your opponent's) on what the law should be. All
of this involves understanding the value of precedent in the law, as well as the ability to synthesize
cases and analogize among related areas of law. (You will work most directly on these skills in your
legal writing class; and your other professors will assume you are in fact developing them in that
context. Thus, as you do your work both in and out of legal writing class, train yourself to think
about how these skills apply, not only to your own writing, but also to the structure and articulation
of judges' opinions, and to the way advocates and judges in all subject matters engage their
analyses.)

4. (A) The court's application of the facts to the rule or law. This is also called the court's analysis.

It is in this part of the case that the court addresses the parties' different arguments about how the
law applies to the facts, and also the part in which the court resolves those arguments. This part also
may contain the court's rationale, or explanation for the ultimate holding and result.

Sometimes, the court will engage in a lengthy, detailed analysis or application, and this section will
be easily distinguished from the rest. Other times, the court will be "conclusory" in its application
or analysis. This means that after it has set out the fact, the issue, and the law, it will simply
conclude that the result is obvious.

5. (C) The court's conclusion, also called the holding of the case.

This is your summary of the new rule that emerges as a result of the court's analysis and result in
the case. As with the issue, the conclusion or holding also may be broken down into two questions
in most cases, i.e., there will often be both a procedural and a substantive holding. There is quite
a science to developing the substantive holding in particular; you will spend a lot of time working
on this skill, also most directly in your legal writing class. In this regard, note carefully that the
conclusion or holding is to be distinguished from the result in the case, which is simply the "yes"
or "no" answer to the issue, or more simply the answer to the question, who won in the end.

                                               *   *    *

Note that when you work with your other professors, the IRAC formula may be presented a bit
differently than I have here. But since we all speak the same language in the end, you should be able
to reconcile the different formulas without much difficulty. (If this is not the case, come see one of
us and we will help you with that reconciliation.) Note also that while some of your professors will

                                             Page 5 of 15
focus class discussion on critical analysis of cases including case briefs, others will assume you have
engaged this analysis on your own and will use that assumed analysis as a springboard for additional
discussion--for example, of the policy implications of the law or its theoretical sources--while yet
others will engage a hybrid approach. The professor's approach depends upon his or her
pedagogical objectives for the class.

Finally, note that while critiques of/policy arguments about the law or its application to a particular
set of facts may form part of a court's discussion (in the R/Rule and/or A/Application portions of
its opinion) the IRAC template does not provide a place for you to do the same. A brief is a
summary of the court's opinion, not yours. Nevertheless, intellectual engagement in class
materials--an important expectation of the faculty here at Duke Law--means more than just
briefing. And so as you proceed, be sure to develop your own system for developing and
chronicling your (and your professors' and classmates') critiques and policy arguments.

C. WORKING ON HOW TO READ A CASE

The goal of this session is to develop your ability effectively to read a case so that you can make the
most out of class. Part A of this memorandum set out the civil trial and appellate process. Part B
provided you with a briefing template. This last Part provides a relatively simple but still interesting
case for you to practice with. Read it, work on preparing a brief using the template provided above,
and as you do, focus also on (1) how the plaintiff sought but ultimately failed to develop her claim,
and (2) the stage of the trial process at which this decision was reached and how the procedure
involved at that stage intersected with the substantive issue it addressed. Remember also to note any
critiques you may have about the law the judge applies to resolve the case, and/or the way in which
she applies the law to the facts. As you do, consider any counterarguments that might be raised in
connection with your critique.




                                            Page 6 of 15
         Paula Corbin JONES v. William Jefferson CLINTON and Danny FERGUSON
                United States District Court, E.D. Arkansas, Western Division.
                                         April 1, 1998.
                              Memorandum Opinion and Order

Susan Webber Wright, District Judge.

The plaintiff in this lawsuit, Paula Corbin Jones, seeks civil damages from William Jefferson
Clinton, President of the United States, and Danny Ferguson, a former Arkansas State Police
Officer, for alleged actions beginning with an incident in a hotel suite in Little Rock, Arkansas. This
case was previously before the Supreme Court of the United States to resolve the issue of
Presidential immunity but was remanded to this Court following the Supreme Court's determination
that there is no constitutional impediment to allowing plaintiff's case to proceed while the President
is in office. See Clinton v. Jones, --- U.S. ----, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). Following
remand, the President filed a motion for judgment on the pleadings and dismissal of the complaint
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Ferguson joined in the President's
motion. By Memorandum Opinion and Order dated August 22, 1997, this Court granted in part and
denied in part the President's motion. See Jones v. Clinton, 974 F.Supp. 712 (E.D.Ark.1997). The
Court dismissed plaintiff's defamation claim against the President, dismissed her due process claim
for deprivation of a property interest in her State employment, and dismissed her due process claims
for deprivation of a liberty interest based on false imprisonment and injury to reputation, but
concluded that the remaining claims in plaintiff's complaint stated viable causes of action. See id.
Plaintiff subsequently obtained new counsel and filed a motion for leave to file a first amended
complaint, which the Court granted, albeit with several qualifications. See Order of November 24,
1997. [FN1] The matter is now before the Court on motion of both the President and Ferguson for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has
responded in opposition to these motions, and the President and Ferguson have each filed a reply
to plaintiff's response to their motions. For the reasons that follow, the Court finds that the
President's and Ferguson's motions for summary judgment should both be and hereby are granted.
[FN2]

       FN1. Among other things, the Court allowed plaintiff to drop her remaining defamation claim against
       Ferguson and allowed her to drop her remaining loss-of-reputation claims. The Court also allowed
       plaintiff to clarify her constitutional and civil rights claims and conform them more fully to the facts
       previously pled, but only to the extent that plaintiff was not thereby asserting new causes of action or
       attempting to add Ferguson as a defendant on any cause of action where he was not previously
       considered a defendant.

       FN2. All other pending motions in this case, including the motion filed on Saturday, March 28, 1998,
       in Pine Bluff, Arkansas, have no bearing on the issues raised by the President's and Ferguson's motions
       for summary judgment and are therefore not addressed.

                                                           I.

This lawsuit is based on an incident that is said to have taken place on the afternoon of May 8, 1991,
in a suite at the Excelsior Hotel in Little Rock, Arkansas. President Clinton was Governor of the

                                                  Page 7 of 15
State of Arkansas at the time, and plaintiff was a State employee with the Arkansas Industrial
Development Commission ("AIDC"), having begun her State employment on March 11, 1991.
Ferguson was an Arkansas State Police officer assigned to the Governor's security detail.

According to the record, then-Governor Clinton was at the Excelsior Hotel on the day in question
delivering a speech at an official conference being sponsored by the AIDC. Am. Compl. ¶ 7. [FN3]
Plaintiff states that she and another AIDC employee, Pamela Blackard, were working at a
registration desk for the AIDC when a man approached the desk and informed her and Blackard that
he was Trooper Danny Ferguson, the Governor's bodyguard. Pl.'s Statement of Mat. Facts, ¶¶ 1-2.
She states that Ferguson made small talk with her and Blackard and that they asked him if he had
a gun as he was in street clothes and they "wanted to know." Pl.'s Depo. at 101. Ferguson
acknowledged that he did and, after being asked to show the gun to them, left the registration desk
to return to the Governor. Id.; Pl.'s Statement of Mat. Facts, ¶ 2. The conversation between
plaintiff, Blackard, and Ferguson lasted approximately five minutes and consisted of light, friendly
banter; there was nothing intimidating, threatening, or coercive about it. Pl.'s Depo. at 226-27.

       FN3. In addressing the issues in this case, the Court has viewed the record in the light most favorable
       to plaintiff and given her the benefit of all reasonable factual inferences, which is required at this stage
       of the proceedings. See Christopher v. Adam's Mark Hotels, 137 F.3d 1069, 1070 (8th Cir.1998). The
       Court has, however, deemed admitted those facts set forth by the President in his statement of material
       facts that plaintiff has not specifically controverted in her statement of material facts. See Rule 56.1(c)
       of the Rules of the United States District Court for the Eastern and Western Districts of Arkansas,
       which provides that "[a]ll material facts set forth in the statement filed by the moving party ... shall
       be deemed admitted unless controverted by the statement filed by the non-moving party...."

Upon leaving the registration desk, Ferguson apparently had a conversation with the Governor about
the possibility of meeting with plaintiff, during which Ferguson states the Governor remarked that
plaintiff had "that come-hither look," i.e. "a sort of [sexually] suggestive appearance from the look
or dress." Ferguson Depo. at 50; Pl.'s Statement of Mat. Facts, ¶ 3; President's Depo. at 109. [FN4]
He states that "some time later" the Governor asked him to "get him a room, that he was expecting
a call from the White House and ... had several phone calls that he needed to make," and asked him
to go to the car and get his briefcase containing the phone messages. Ferguson Depo. at 50, 67.
Ferguson states that upon obtaining the room, the Governor told him that if plaintiff wanted to meet
him, she could "come up." Id. at 50.

       FN4. Ferguson states that plaintiff informed him that she would like to meet the Governor, remarking
       that she thought the Governor "was good- looking [and] had sexy hair," Ferguson Depo. at 50, while
       plaintiff states that Ferguson asked her if she would like to meet the Governor and that she was
       "excited" about the possibility, Pl.'s Depo. at 101.

Plaintiff states that Ferguson later reappeared at the registration desk, delivered a piece of paper to
her with a four-digit number written on it, and said that the Governor would like to meet with her
in this suite number. Pl.'s Statement of Mat. Facts, ¶ 6. She states that she, Blackard, and Ferguson
talked about what the Governor could want and that Ferguson stated, among other things, "We do
this all the time." Id. Thinking that it was an honor to be asked to meet the Governor and that it
might lead to an enhanced employment opportunity, plaintiff states that she agreed to the meeting

                                                    Page 8 of 15
and that Ferguson escorted her to the floor of the hotel upon which the Governor's suite was located.
Am. Compl. ¶¶ 11-13.

Plaintiff states that upon arriving at the suite and announcing herself, the Governor shook her hand,
invited her in, and closed the door. Pl.'s Statement of Mat. Facts, ¶¶ 7-8. She states that a few
minutes of small talk ensued, which included the Governor asking her about her job and him
mentioning that Dave Harrington, plaintiff's ultimate superior within the AIDC and a Clinton
appointee, was his "good friend." Id. ¶ 8; Am. Compl. ¶ 17. Plaintiff states that the Governor then
"unexpectedly reached over to [her], took her hand, and pulled her toward him, so that their bodies
were close to each other." Pl.'s Statement of Mat. Facts, ¶ 9. She states she removed her hand from
his and retreated several feet, but that the Governor approached her again and, while saying, "I love
the way your hair flows down your back" and "I love your curves," put his hand on her leg, started
sliding it toward her pelvic area, and bent down to attempt to kiss her on the neck, all without her
consent. Id. ¶¶ 9-10; Pl.'s Depo. at 237-38. [FN5] Plaintiff states that she exclaimed, "What are you
doing?," told the Governor that she was "not that kind of girl," and "escaped" from the Governor's
reach "by walking away from him." Pl.'s Statement of Mat. Facts, ¶ 11; Pl.'s Depo. at 237. She
states she was extremely upset and confused and, not knowing what to do, attempted to distract the
Governor by chatting about his wife. Pl.'s Statement of Mat. Facts, ¶ 11. Plaintiff states that she sat
down at the end of the sofa nearest the door, but that the Governor approached the sofa where she
had taken a seat and, as he sat down, "lowered his trousers and underwear, exposed his penis (which
was erect) and told [her] to 'kiss it.' " Id. [FN6] She states that she was "horrified" by this and that
she "jumped up from the couch" and told the Governor that she had to go, saying something to the
effect that she had to get back to the registration desk. Id. ¶ 12. Plaintiff states that the Governor,
"while fondling his penis," said, "Well, I don't want to make you do anything you don't want to do,"
and then pulled up his pants and said, "If you get in trouble for leaving work, have Dave call me
immediately and I'll take care of it." Id. She states that as she left the room (the door of which was
not locked), the Governor "detained" her momentarily, "looked sternly" at her, and said, "You are
smart. Let's keep this between ourselves." Id.; Pl.'s Depo. at 94, 96-97. [FN7]

       FN5. In her amended complaint, plaintiff states that the Governor "put his hand on [her] leg and
       started sliding it toward the hem of [her] culottes, apparently attempting to reach [her] pelvic area."
       Am. Compl. ¶ 20. In her original complaint, plaintiff states that the Governor "put his hand on [her]
       leg and started sliding it toward the hem of [her] culottes," with no reference to her "pelvic area."
       Compl. ¶ 20.

       FN6. Plaintiff states in her amended complaint that the Governor "asked" her to "kiss it" rather than
       telling her to do so. Am. Compl. ¶ 21. She states in her deposition that the Governor's specific words
       to her were, "Would you kiss it for me?" Pl.'s Depo. at 108.

       FN7. Plaintiff's allegation that the Governor momentarily "detained" her was not included in either
       her original or amended complaint.

Plaintiff states that the Governor's advances to her were unwelcome, that she never said or did
anything to suggest to the Governor that she was willing to have sex with him, and that during the
time they were together in the hotel suite, she resisted his advances although she was "stunned by
them and intimidated by who he was." Pl.'s Statement of Mat. Facts, ¶ 14. She states that when the

                                                  Page 9 of 15
Governor referred to Dave Harrington, she "understood that he was telling her that he had control
over Mr. Harrington and over her job, and that he was willing to use that power." Id. ¶ 13. She
states that from that point on, she was "very fearful" that her refusal to submit to the Governor's
advances could damage her career and even jeopardize her employment. Id.

Plaintiff states that when she left the hotel suite, she was in shock and upset but tried to maintain her
composure. Id. ¶ 15. She states she saw Ferguson waiting outside the suite but that he did not escort
her back to the registration desk and nothing was said between them. Id. Ferguson states that five
or ten minutes after plaintiff exited the suite he joined the Governor for their return to the Governor's
Mansion and that the Governor, who was working on some papers that he had spread out on the
desk, said, "She came up here, and nothing happened." Id. ¶ 16; Ferguson Depo. at 63.

Plaintiff states she returned to the registration desk and told Blackard some of what had happened.
Blackard Depo. at 68. Blackard states that plaintiff was shaking and embarrassed. Id. Following
the Conference, plaintiff states she went to the workplace of a friend, Debra Ballentine, and told her
of the incident as well. Pl.'s Statement of Mat. Facts, ¶ 18. Ballentine states that plaintiff was upset
and crying. Ballentine Depo. at 48. Later that same day, plaintiff states she told her sister, Charlotte
Corbin Brown, what had happened and, within the next two days, also told her other sister, Lydia
Corbin Cathey, of the incident. Id. ¶ 20. Brown's observations of plaintiff's demeanor apparently
are not included in the record. Cathey, however, states that plaintiff was "bawling" and "squalling,"
and that she appeared scared, embarrassed, and ashamed. Cathey Depo. at 52.

Ballentine states that she encouraged plaintiff to report the incident to her boss or to the police, but
that plaintiff declined, pointing out that her boss was friends with the Governor and that the police
were the ones who took her to the hotel suite. Ballentine Depo. at 50. Ballentine further states that
plaintiff stated she did not want her fiance to know of the incident and that she "just want[ed] this
thing to go away." Id. Plaintiff states that what the Governor and Ferguson had said and done made
her "afraid" to file charges. Pl.'s Statement of Mat. Facts, ¶ 19.

Plaintiff continued to work at AIDC following the alleged incident in the hotel suite. Id. ¶ 22. One
of her duties was to deliver documents to and from the Office of the Governor, as well as other
offices around the Arkansas State Capitol. Id. She states that in June 1991, while performing these
duties for the AIDC, she encountered Ferguson who told her that Mrs. Clinton was out of town often
and that the Governor wanted her phone number and wanted to see her. Id. Plaintiff states she
refused to provide her phone number to Ferguson. Id. She states that Ferguson also asked her how
her fiance, Steve, was doing, even though she had never told Ferguson or the Governor his name,
and that this "frightened" her. Id. ¶ 23. Plaintiff states that she again encountered Ferguson
following her return to work from maternity leave and that he said he had "told Bill how good
looking you are since you've had the baby." Id. ¶ 25. She also states that she was "accosted" by the
Governor in the Rotunda of the Arkansas State Capitol when he "draped his arm over her, pulled her
close to him and held her tightly to his body," and said to his bodyguard, "Don't we make a beautiful
couple: Beauty and the Beast?" Id. ¶ 24. Plaintiff additionally states that on an unspecified date,
she was waiting in the Governor's outer office on a delivery run when the Governor entered the
office, patted her on the shoulder, and in a "friendly fashion" said, "How are you doing, Paula?"

                                            Page 10 of 15
Pl.'s Depo. at 244-45.

Plaintiff states that she continued to work at AIDC "even though she was in constant fear that [the
Governor] would retaliate against her because she had refused to have sex with him." Id. ¶ 27. She
states this fear prevented her from enjoying her job. Id. Plaintiff states that she was treated "very
rudely" by certain superiors in AIDC, including her direct supervisor, Clydine Pennington, and that
this "rude treatment" had not happened prior to her encounter with the Governor. Id. She states that
after her maternity leave, she was transferred to a position which had much less responsibility and
that much of the time she had nothing to do. Id. ¶ 28; Pl.'s Depo. at 53. Plaintiff states that she was
not learning anything, that her work could not be fairly evaluated, and that as a result, she could not
be fairly considered for advancement and other opportunities. Pl.'s Statement of Mat. Facts, ¶ 28.
She states that Pennington told her the reason for the transfer was that her prior position had been
eliminated, but that she later learned this was untrue, as her former position was being occupied by
another employee. Id. Plaintiff states that she repeatedly expressed to Pennington an interest in
transferring to particular positions at a higher "grade" which involved more challenging duties, more
potential for advancement, and more compensation, but that Pennington always discouraged her
from doing so and told her she should not bother to apply for those positions. Id. ¶ 29. She goes
on to state that her superiors exhibited hostility toward her by moving her work location, refusing
to give her meaningful work, watching her constantly, and failing to give her flowers on Secretary's
Day in 1992, even though all the other women in the office received flowers. Id. ¶ 30.

Plaintiff voluntarily terminated her employment with AIDC on February 20, 1993, in order to move
to California with her husband, who had been transferred. Am. Compl. ¶ 40; Pl.'s Depo. at 48. She
states that in January 1994, while visiting family and friends in Arkansas, she was informed of an
article in The American Spectator magazine that she claims referred to her alleged encounter with
the Governor at the Excelsior Hotel and incorrectly suggested that she had engaged in sexual
relations with the Governor. Pl.'s Statement of Mat. Facts, ¶ 33. Plaintiff states that she also
encountered Ferguson in a restaurant during this same time and that he indicated he was the source
for the article and that he knew she had refused the Governor's alleged advances because, he said,
"Clinton told me you wouldn't do anything anyway, Paula." Id. ¶ 35.

On February 11, 1994, at an event attended by the media, plaintiff states that she publicly asked
President Clinton to acknowledge the incident mentioned in the article in The American Spectator,
to state that she had rejected his advances, and to apologize to her, but that the President responded
to her request for an apology by having his press spokespersons deliver a statement on his behalf
that the incident never happened and that he never met plaintiff. Am. Compl. ¶¶ 47-48. Thereafter,
on May 6, 1994, plaintiff filed this lawsuit.

Plaintiff's amended complaint contains several claims, three of which remain at issue. See Jones,
974 F.Supp. 712; Order of November 24, 1997. The first is a claim under 42 U.S.C. § 1983 in which
plaintiff alleges that Governor Clinton, acting under color of state law, deprived her of her
constitutional right to equal protection of the laws under the Fourteenth Amendment to the United
States Constitution by sexually harassing her. The second is a claim under 42 U.S.C. § 1985(3) in
which plaintiff alleges that Governor Clinton and Ferguson conspired to deprive her of her rights

                                           Page 11 of 15
to equal protection of the laws and of equal privileges and immunities under the laws. The third is
a state law claim in which plaintiff asserts a claim of intentional infliction of emotional distress or
outrage against Governor Clinton, based primarily on the alleged incident at the hotel but also
encompassing subsequent alleged acts.

                                                   II.

The President moves for summary judgment on the following grounds: . . . (3) plaintiff's claim of
intentional infliction of emotional distress or outrage fails because (a) by plaintiff's own testimony,
the conduct at issue does not constitute intentional infliction of emotional distress or outrage under
Arkansas law, and (b) plaintiff did not as a result of the alleged conduct suffer emotional distress
so severe that no reasonable person could endure it. . . .

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of
evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its
motion for summary judgment, the nonmoving party must "do more than simply show there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The nonmoving party may not rest on
mere allegations or denials of his pleading, but must "come forward with 'specific facts showing that
there is a genuine issue for trial.' " Id. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) and
adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505,
2514, 91 L.Ed.2d 202 (1986). The inferences to be drawn from the underlying facts must be viewed
in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S.
at 587, 106 S.Ct. at 1356 (citations omitted). However, "[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'
" Id. (citation omitted). . . .

Finally, the Court addresses plaintiff's state law claim of intentional infliction of emotional distress
or outrage. [FN20] Arkansas recognizes a claim of intentional infliction of emotional distress based
on sexual harassment. Davis v. Tri-State Mack Distribs., Inc., 981 F.2d 340, 342 (8th Cir.1992)
(citing Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992)). To establish a claim of intentional
infliction of emotional distress, a plaintiff must prove that: (1) the defendant intended to inflict
emotional distress or knew or should have known that emotional distress was the likely result of his
conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized
community; (3) the defendant's conduct was the cause of the plaintiff's distress; and (4) the
plaintiff's emotional distress was so severe in nature that no reasonable person could be expected
to endure it. Milam v. Bank of Cabot, 327 Ark. 256, 264-66, 937 S.W.2d 653, 658 (1997);
Hollomon v. Keadle, 326 Ark. 168, 170-71, 931 S.W.2d 413, 415 (1996); Cherepski v. Walker, 323
Ark. 43, 913 S.W.2d 761, 767 (1996); Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283, 286 (1996).


                                            Page 12 of 15
        FN20. Under Arkansas law, the tort of intentional infliction of emotional distress and the tort of
        outrage are essentially the same causes of action and are governed by the same standards. See, e.g.,
        Hamaker v. Ivy, 51 F.3d 108, 110 n. 2 (8th Cir.1995), Ross v. Patterson, 307 Ark. 68, 70- 71, 817
        S.W.2d 418, 420 (1991).

The President argues that the alleged conduct of which plaintiff complains was brief and isolated;
did not result in any physical harm or objective symptoms of the requisite severe distress; did not
result in distress so severe that no reasonable person could be expected to endure it; and he had no
knowledge of any special condition of plaintiff that would render her particularly susceptible to
distress. He argues that plaintiff has failed to identify the kind of clear cut proof that Arkansas
courts require for a claim of outrage and that he is therefore entitled to summary judgment. The
Court agrees. [FN21]
        FN21. In denying the President's motion for judgment on the pleadings on this claim, the Court noted
        that the totality of the alleged conduct on which plaintiff based her lawsuit, including her claim that
        her rejection of the President's alleged advances caused her to suffer adverse employment action,
        could, if true, be regarded as sufficient to state a claim of intentional infliction of emotional distress.
        See Jones, 974 F.Supp. at 730. For the reasons previously stated, however, it is now apparent that
        plaintiff's claims have not borne fruit. The record upon which this Court is now addressing plaintiff's
        claim of outrage--indeed, all her claims--is far different from the record that was before the Court last
        August.

One is subject to liability for the tort of outrage or intentional infliction of emotional distress if he
or she wilfully or wantonly causes severe emotional distress to another by extreme and outrageous
conduct. Sterling Drug Inc. v. Oxford, 294 Ark. 239, 243-44, 743 S.W.2d 380, 382 (1988). See also
Ingram v. Pirelli Cable Corp., 295 Ark. 154, 157- 59, 747 S.W.2d 103, 105 (1988). In M.B.M. Co.
v. Counce, 268 Ark. 269, 280, 596 S.W.2d 681, 687 (1980), the Arkansas Supreme Court stated that
"[b]y extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in civilized society." Whether conduct is "extreme and outrageous" is
determined by looking at "the conduct at issue; the period of time over which the conduct took
place; the relation between plaintiff and defendant; and defendant's knowledge that plaintiff is
particularly susceptible to emotional distress by reason of some physical or mental peculiarity." Doe
v. Wright, 82 F.3d 265, 269 (8th Cir.1996) (citing Hamaker, 51 F.3d at 111). The tort is clearly not
intended to provide legal redress for every slight insult or indignity that one must endure. Manning,
127 F.3d at 690 (citing Hamaker, 51 F.3d at 110). The Arkansas courts take a strict approach and
give a narrow view to claims of outrage, see id., and merely describing conduct as outrageous does
not make it so. Ross, 817 S.W.2d at 420.

Plaintiff seems to base her claim of outrage on her erroneous belief that the allegations she has
presented are sufficient to constitute criminal sexual assault. She states that "Mr. Clinton's
outrageous conduct includes offensive language, an offensive proposition, offensive touching
(constituting sexual assault under both federal and state definitions), and actual exposure of an
intimate private body part," and that "[t]here are few more outrageous acts than a criminal sexual
assault followed by unwanted exposure, coupled with a demand for oral sex by the most powerful
man in the state against a very young, low-level employee." Pl.'s Opp'n to Def. Clinton's Mot. for


                                                    Page 13 of 15
Summ. J. at 66 (emphasis in original).

While the Court will certainly agree that plaintiff's allegations describe offensive conduct, the Court,
as previously noted, has found that the Governor's alleged conduct does not constitute sexual assault.
Rather, the conduct as alleged by plaintiff describes a mere sexual proposition or encounter, albeit
an odious one, that was relatively brief in duration, did not involve any coercion or threats of
reprisal, and was abandoned as soon as plaintiff made clear that the advance was not welcome. The
Court is not aware of any authority holding that such a sexual encounter or proposition of the type
alleged in this case, without more, gives rise to a claim of outrage. Cf. Croom, 913 S.W.2d at 287
(use of wine and medication by a vastly older relative to foist sex on a minor cousin went "beyond
a mere sexual encounter" and offended all sense of decency).

Moreover, notwithstanding the offensive nature of the Governor's alleged conduct, plaintiff admits
that she never missed a day of work following the alleged incident, she continued to work at AIDC
another nineteen months (leaving only because of her husband's job transfer), she continued to go
on a daily basis to the Governor's Office to deliver items and never asked to be relieved of that duty,
she never filed a formal complaint or told her supervisors of the incident while at AIDC, she never
consulted a psychiatrist, psychologist, or incurred medical bills as a result of the alleged incident,
and she acknowledges that her two subsequent contacts with the Governor involved comments made
"in a light vein" and nonsexual contact that was done in a "friendly fashion." Further, despite earlier
claiming that she suffered marital discord and humiliation, plaintiff stated in her deposition that she
was not claiming damages to her marriage as a result of the Governor's alleged conduct, see Pl.'s
Depo. at 122, and she acknowledged the request to drop her claim of injury to reputation by stating,
"I didn't really care if it was dropped or not personally." Id. at 261-62. Plaintiff's actions and
statements in this case do not portray someone who experienced emotional distress so severe in
nature that no reasonable person could be expected to endure it. Cf. Hamaker, 51 F.3d 108 (no
claim of outrage where plaintiff, who had a speech impediment and an I.Q. of between 75 and 100,
was "red-faced and angry," had an "increased heart rate and blood pressure," and had trouble
sleeping four days after incident involving "rather nasty" practical joke).

Nevertheless, plaintiff submits a declaration from a purported expert with a Ph.D. in education and
counseling, Patrick J. Carnes, who, after a 3.5 hour meeting with plaintiff and her husband a mere
four days prior to the filing of President Clinton's motion for summary judgment, opines that her
alleged encounter with Governor Clinton in 1991, "and the ensuing events," have caused plaintiff
to suffer severe emotional distress and "consequent sexual aversion." The Court does not credit this
declaration.


In Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997), the Arkansas Supreme Court noted
that absent physical harm, courts look for more in the way of extreme outrage as an assurance that
the mental disturbance claimed is not fictitious. Id. at 936-37. In that case, the plaintiffs offered
their own testimony that they had experienced emotional distress, thoughts of death, fear, anger, and
worry, but little else. Id. In concluding that there was no evidence of extreme emotional distress
required to prevail on an outrage claim, the Court found it significant that none had seen a physician

                                            Page 14 of 15
or mental health professional for these concerns. Id. The Court did not allow the fact that one
plaintiff "on the advice of her attorney, spoke to a psychologist," to overcome her failure of proof
on this point. Id. at 937 n. 3.

Aside from other deficiencies with the Carnes' declaration (including the fact that the substance of
this declaration apparently was not disclosed in accordance with rules governing pre-trial discovery),
the opinions stated therein are vague and conclusory and, as in Angle, do not suffice to overcome
plaintiff's failure of proof on her claim of outrage. Cf. Crenshaw v. Georgia-Pacific Corp., 915
F.Supp. 93, 99 (W.D.Ark.1995) (affidavit prepared after opposing motion for summary judgment
filed detailing symptoms of weight loss, lack of sleep, headache, worry, and nausea, failed to present
sufficient evidence of emotional distress).

In sum, plaintiff's allegations fall far short of the rigorous standards for establishing a claim of
outrage under Arkansas law and the Court therefore grants the President's motion for summary
judgment on this claim. . . .

For the foregoing reasons, the Court finds that the President's and Ferguson's motions for summary
judgment should both be and hereby are granted. There being no remaining issues, the Court will
enter judgment dismissing this case.




                                           Page 15 of 15