CHALLENGES ALL AROUND

Even with the lower standard of evidence in civil cases, Rodney Smolla, dean of Delaware Law School, said that plaintiffs bringing defamation claims faced a significant legal challenge.

In addition to proving that Cosby assaulted them, Smolla said, they would have to establish that he said something about them beyond denying the allegations, such as calling them known liars or promiscuous.

“The defamation case is this clever way of saying, If I say you raped me and you say it didn’t happen, then you’re defaming me by calling me a liar,” he said. “And that in itself is a difficult defamation case. It’s not a classic defamation case.”

Smolla said the outcome of any civil case would depend on how jurors behave in terms of how seriously they take the case, how they relate to one another and how they deal with holdout jurors.

“That is the human side of the legal system that can be hard to predict,” he said.

DAMAGES VS JAIL

Paul Callan, who represented the estate of Nicole Brown Simpson in a civil case against her exhusband, former football star O.J. Simpson, after he was found not guilty of her murder, said courts are much stricter in excluding evidence in criminal cases because a conviction could lead to incarceration.

“In civil cases, the battle is over money damages, as opposed to sending someone to prison,” Callan said. “In my experience, the courts tend to be far more liberal in allowing both sides to introduce a greater volume of evidence than the stricter rules in criminal cases.”

While Simpson was acquitted in the 1995 criminal case, a jury in the civil case ordered him to pay $25 million in punitive damages to the families of Nicole Brown Simpson and Ronald L. Goldman, who were together when they were killed. The jury also awarded $ 8.5 million in compensatory damages to Goldman’s family.

Before it could decide the awards, the jury in the civil case had to determine if O.J. Simpson was the killer.

Callan said the $33.5 million awarded in the case reflected the jury’s reaction to a double homicide and was larger than a potential award to someone who has civil claims against Cosby.

But in the aggregate, he said, Cosby could face a comparable award because of the number of alleged victims. —