Simpson Faces Tougher Battle in Civil Lawsuits : Courts: A 50.1% probability of guilt is enough to award damages. Verdicts need not be unanimous.

When Fred Goldman turns to civil court to battle O.J. Simpson, he will be seeking more than compensation for the death of his eldest child--he will also be aiming to unmask a man he fervently believes murdered his son.

Goldman will not have the resources of the district attorney’s office, which spent millions to unsuccessfully prosecute Simpson on criminal charges. But he will have a trump card: the rules of civil court.

In the criminal case, prosecutors had to prove beyond a reasonable doubt that O.J. Simpson murdered Ronald Lyle Goldman and Nicole Brown Simpson. In the civil case, Goldman’s lawyers only have to persuade jurors that there is a “preponderance of evidence” implicating Simpson as the killer. Civil jurors are allowed to decide against Simpson even if they think there is just a 50.1% probability that he slashed the throats of Goldman and his ex-wife.

And the verdict need not be unanimous--just nine votes from the dozen jurors are required for Goldman to win a judgment against Simpson.

“It’s a very different mind-set the jury brings to the case in a civil trial,” Stanford law professor Robert L. Rabin said. “It’s not the case that if just one or two holes are poked in the prosecution’s evidence, the jury is supposed to decide for the defendant.”

Goldman’s lawsuit contends that Simpson “brutally murdered” Ronald Goldman, a 25-year-old waiter who died alongside Nicole Brown Simpson on June 12, 1994. Ronald Goldman’s mother, Sharon Rufo of St. Louis, has filed a similar suit. So has Louis Brown, the father of Nicole Simpson.

O.J. Simpson’s defense team successfully beat back murder charges during the criminal trial by attacking the prosecution’s evidence as being contaminated, planted or ruined by careless police work. After nine months of testimony and 133 witnesses, jurors deliberated for only a little more than three hours before unanimously determining that Simpson was not guilty.

The speedy acquittals seemed sweet vindication for Simpson. But they mean nothing in the civil courthouse.

Simpson cannot use them as a defense in the three wrongful death lawsuits he faces. “The verdict in the first case is quite irrelevant,” UCLA law professor Gary T. Schwartz said.

“It all starts fresh at this point,” Rabin added.

Faster Trial Expected

The Constitution guarantees that no one shall be tried twice for the same crime, a concept known as double jeopardy. So Simpson cannot be hauled into criminal court again for another trial on the same charges. But the victims’ families can still sue him in civil court, seeking compensation for their losses, even though he was found not guilty in a criminal court.

Most wrongful death cases have nothing to do with homicides. Instead, they involve product failure or medical malpractice. If a car exploded on impact, for example, a victim’s family might sue the manufacturer, or if a patient died on the operating table, his relatives might sue the surgeon.

Wrongful death lawsuits can also be brought against convicted murderers, but in those cases, the court assumes the defendant’s liability for the deaths and simply holds a hearing to determine the size of the damage award.

In contrast, the lawsuits against Simpson will unfold in two stages. First, jurors must determine whether it is likely he committed the murders. If they hold him liable, they must then decide how much he owes the victims’ relatives.

Fred Goldman, Sharon Rufo and the Brown family will all be asking for at least million-dollar judgments against Simpson. Yet the grieving families--especially Goldman, who has forcefully denounced Simpson as a killer on the loose--want more than money. As civil lawyer Doug Mirell put it: “I think they want answers.”

Legal analysts expect the civil case to be much crisper and quicker than the criminal battle.

The characters will be different as well. The charismatic Johnnie L. Cochran Jr., who led Simpson’s criminal defense team, has stepped aside in favor of Robert C. Baker, a veteran Santa Monica civil lawyer who has spent years defending physicians from malpractice claims.

Baker has declined to comment on the lawsuits. But in papers filed with the Superior Court last week, he responded to the Brown family’s suit with a flat-out denial. “[Simpson] denies that the plaintiff has sustained injury, damage or loss by reason of [his] act or omission,” Baker wrote. The papers did not address the question of whether Simpson murdered Ron Goldman. Instead, Baker argued that the Goldmans can seek only compensatory--not punitive--damages, which would drastically lower the sum they would receive if they prevailed in court.

The plaintiffs have not yet settled on their attorneys. But already, plenty of outsiders are offering tactical tips--especially about how to question Simpson.

The constitutional right against self-incrimination extends only to criminal cases, so Simpson cannot invoke the 5th Amendment to remain silent in the civil cases. If he refuses to answer questions, he loses the cases.

In depositions and again during the trial, lawyers for the Brown and Goldman families can demand explanations for the mysteries that confounded them during the criminal trial. For example, they might ask about Simpson’s whereabouts on the night of the murders between 9:36 p.m., when he returned from a trip for hamburgers with guest house tenant Brian (Kato) Kaelin, until 10:54 p.m., when he talked to a limousine driver waiting to take him to Los Angeles International Airport.

A Legal Minefield

Lawyer Stephen Yagman, who often represents plaintiffs in wrongful death cases, knows what his first question would be: “Mr. Simpson, tell us chronologically each and every thing you said, each and everything that was said to you, each and every place you went, each and every thing you did from the moment Mr. Kaelin left you when you got back from McDonald’s until the moment you boarded the plane for Chicago. And take your time.”

Whatever Simpson’s answer, opposing lawyers could challenge it. If Simpson says he was sleeping, why did he tell television host Larry King that he had been packing his bags in a darkened house? If he was packing, why did he tell the limo driver that he had been snoozing? And if he was inside, why did Cochran announce during the criminal trial that Simpson had been chipping golf balls in his yard?

Simpson could legitimately refuse to answer inquiries that violated the attorney-client privileged or that quizzed him about his assets. He would not have to respond to the question: “Is it true you confessed your guilt to the first lawyer representing you, Howard Weitzman?,” according to Arthur Rutledge, a veteran civil attorney. But aside from those few taboo topics, Simpson would have to submit to a wide-ranging grilling that could take weeks.

Failing to answer openly could be a public relations disaster for Simpson, who has long proclaimed his innocence. Even if Simpson were to offer money to the Goldmans and Browns to settle the cases outside court, “it would be very hard to put a spin on it that would not make it seem like some kind of confession,” Schwartz said.

Indeed, Cochran predicted that Simpson would put up a feisty defense. “I think his lack of resources and his lack of resolve are greatly overestimated,” he said.

If the case does go to trial, Simpson’s testimony will undoubtedly be the centerpiece. Although Cochran predicted a “mini-trial of what we had” in the criminal case, both sides can pare down their presentations considerably. Instead of calling a medical examiner to discuss the victims’ injuries, for example, the plaintiffs can simply enter into evidence the fat stack of autopsy notes.

They may also choose to avoid lengthy science lessons about DNA tests and genetic matches. Yagman recommended bringing back Robin Cotton of Cellmark Diagnostics in Maryland and Gary Sims of the State Department of Justice to discuss blood test results--but for an hour each, not a week. “Brevity is the word,” Yagman said. “Everyone on the jury will have seen part of the criminal case. The motto is, ‘Cut to the chase.’ ”

Lawyers on both sides might also limit their presentations to cap their costs.

Neither side will have to pay for testimony from city or county employees. But other witnesses are costly: Cotton charged prosecutors $1,200 a day for her work in the criminal trial. In all, prosecutors spent $3.6 million investigating and presenting the case. Although Goldman has been receiving donations for his upcoming legal fight, it seems unlikely he will be able to match the county’s deep pockets.

The defense brought in its own high-priced exerts, including Dr. Henry Lee, who charged $300 an hour for his examination of crime-scene evidence, and Dr. Michael Baden, who received $1,500 a day to review the autopsy reports. Despite the cost, Cochran said he expects Simpson’s civil defense team to call Lee and Baden, who both cast doubt on the prosecution’s evidence. “They would be very relevant,” Cochran said.

Armed with hindsight, both the plaintiffs and the defense can avoid witnesses who bombed in the criminal trial.

The plaintiffs could sap the defense’s conspiracy theory by leaving out the bloody right-hand glove Detective Mark Fuhrman said he found at Simpson’s estate. In the criminal case, defense lawyers accused Fuhrman of planting the glove in a racist attempt to frame Simpson. But they would be hard-pressed to bring up Fuhrman’s racist boasts in the wrongful death case unless the plaintiffs first mention the right-hand glove, legal experts said. “You can’t rebut the glove unless the glove is in evidence,” professor Schwartz said.

Defense Strategy

Still, Simpson’s lawyers could hint at police corruption, or plain incompetence, by attacking the actions of lead Detective Philip L. Vannatter. In the criminal case, Cochran made much of Vannatter’s decision to drive across town with a vial of Simpson’s blood. The plaintiffs have to introduce Vannatter in the civil case because he was one of the lead investigators and because he had custody of key pieces of evidence.

The defense could also reprise an argument from the criminal trial by pointing out that jailhouse nurse Thano Peratis initially testified he drew 8 cubic centimeters of Simpson’s blood, even though the vial contained 6.5 cc’s on later inspection. The missing blood, defense lawyers suggested, might have been daubed on evidence to frame Simpson.

“If I were defending the [wrongful death] case,” Rutledge said, the sloppy collection and handling of blood evidence “would be the root of my defense.”

The defense might also move swiftly to block evidence of domestic violence, Rutledge said. The California Evidence Code prohibits civil plaintiffs from introducing information about a defendant’s history or character as proof of motive. In the criminal case, prosecutors presented several examples of O.J. Simpson’s abuse of Nicole Simpson, including a 1989 beating that landed her in the hospital. They also obtained, but did not introduce to jurors, evidence that Simpson had stalked and spied on his ex-wife.

The trial judges assigned to the civil cases will decide which evidence to allow and whether to permit television cameras in the courtroom. Analysts predicted that the judges will feel enormous pressure to move the cases along at a snappy pace.

“The mere fact that there’s been such an attack on the way the [criminal trial] was handled means that any judge who takes the civil case will be cognizant of the need to do justice with a sense of dispatch,” Stanford’s Rabin said.

Although the trials might move quickly once they start, opening statements could be literally years away. Civil lawsuits processed in the Santa Monica District Court come to trial on average 31 months after they are filed--which would put the Simpson cases on track to begin in January, 1998.

Even then, most jurors will probably retain at least a vague impression of Simpson’s criminal trial--and may hold strong opinions on whether he killed his ex-wife and Goldman. By law, they can serve on the civil case as long as they promise to put aside their views and judge solely on the evidence presented before them.

Attorneys agree that holding the trial in Santa Monica will aid the plaintiffs. The jury pool will include many more whites than in the criminal trial Downtown.

If they do deem Simpson responsible for the murders, jurors will hear testimony from the victims’ relatives requesting money to make up for their loss. In rebuttal, the defense often tries to air a family’s dirty laundry: Rutledge said a defense lawyer would be likely to ask “whether [Ronald Goldman] got money from his dad, had any confrontations with his family, whether he ever ran away from home during high school.”

Few murder suspects are rich enough to pay their victims’ families hefty compensation. But Simpson does have assets, including flashy cars, an expensive home and a New York apartment. He also has earning potential: He could write a best-selling book, make a video or sell autographed football cards.