Civil Cases Offer Victims Another Chance to Prove a Point

It will be a familiar scene: O.J. Simpson sitting at the defense table, his lawyers huddled around him, and a jury weighing his fate. It seems, to many Americans, an awful lot like double jeopardy.

Truck driver Norman Cooke, for one, considers the second trial a bad joke. “If you’ve been tried once by a jury of your peers and found innocent,” he said, catching some sun outside the courthouse where Simpson fended off murder charges, “why should you be held accountable again?”

Cooke can’t help thinking that Simpson has been singled out for a vindictive civil persecution just because some folks can’t stand to see him walk free. In a way, Cooke is right: Simpson has been singled out. Very few convicted murderers face a second trial in civil court--and it’s rarer still for an acquitted suspect to be dragged through a civil proceeding.

But though it’s unusual, it’s not double jeopardy.

People accused of wrongdoing can be held accountable both to the government whose laws they violate and to the individual victims of their misdeeds. The government can go after them in criminal court. Victims can seek justice in the civil system. The government can punish them with jail terms. Victims can demand financial compensation.

So every defendant is vulnerable to a second trial. Yet few actually end up in civil court. It’s not financially feasible for most victims to press charges. After all, not many murderers have the money to pay meaningful compensation. And it costs so much to litigate that most families cannot afford to sue just to prove a point.

“Usually when there has been a murder or a robbery, the accused does not have a lot of assets,” said Victor E. Schwartz, a national expert on civil litigation. “Lawyers are reluctant to work on a contingency basis if they’ll have a pyrrhic victory--they’ll get a verdict, but they won’t be able to enforce it.”

Simpson’s wealth sets him up as a more inviting target for a civil lawsuit.

It’s unclear how much money he has left after his expensive criminal defense; his financial records are sealed. But Simpson, whose trial is scheduled to begin Sept. 17, clearly has some assets--such as his tony house in Brentwood.

The money might make it worthwhile for lawyers to take on Simpson. (The typical contingency fee in such cases calls for a victorious attorney to pocket 30% to 40% of the sum awarded to victims.) But the families of murder victims Ronald Goldman and Nicole Brown Simpson have made clear that their main motive is not money--it is rage at the idea that a man they believe to be a brutal killer is playing golf, dining out, walking free, trumpeting his acquittals as proof of his innocence.

As Daniel M. Petrocelli, who represents Goldman’s father, said in court recently: “My client lost his son. This is his last chance to seek justice.”

Similar sentiment spurred a recent civil lawsuit against rapper Snoop Doggy Dogg.

The wealthy hip-hop artist, whose real name is Calvin Broadus, was acquitted in criminal court on charges of being an accessory in the 1993 killing of Philip Woldermariam. Like Simpson, however, Broadus found that the “not guilty” verdict did not sweep away his legal woes. The victim’s relatives pressed on in civil court; their attorney said they were “dedicated to pursuing justice and vindicating the wrongful death of their son.” They settled for an undisclosed sum in late August, hours before the trial was to begin.

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Both the Broadus and Simpson cases demonstrate how victims turn to civil courts “when it is perceived that the criminal legal system has failed,” Schwartz said. “The relatives need satisfaction, and this is the only way they can get it, short of going out with a gun and killing the [defendant].”

Of course, victims who feel the criminal system has let them down can never find complete satisfaction in civil courts, no matter how favorable the verdict.

Even if he wins, Fred Goldman can never put O.J. Simpson in jail. And he can never erase the acquittals. The most he can do is persuade a jury to pronounce Simpson “liable”--civil courts do not use the term “guilty”--and force him to fork over his bank account.

Despite such limitations, litigators said civil verdicts can pack a potent punch.

Take, for example, the recent civil trial of Bernhard Goetz.

Goetz shot three youths on a New York subway train in December 1984. He said they were about to rob him; they insisted they were panhandling. Goetz triumphed in criminal court, as he was acquitted of attempted murder, although he was convicted of illegal gun possession. But one victim, Darrell Cabey, pressed forward with a civil suit.

Brain-damaged and confined to a wheelchair, Cabey accused Goetz of reckless, outrageous conduct--and won.

A jury ordered Goetz to pay Cabey $18 million as compensation and an additional $25 million in punitive damages (intended to punish Goetz for his behavior). The verdict was largely symbolic, as Goetz, a self-employed electronics expert, earns just $20,000 a year. Still, Cabey’s lawyer insisted that the civil lawsuit furthered justice in a way the criminal trial did not.

“The purpose of the case was never about money,” said lawyer Ronald Kuby, whose firm pressed Cabey’s suit for free. “It was the only tool Darrell Cabey’s mother had to clear her son’s name and to show that Mr. Goetz was a very bad man who did a very bad thing.”

Kuby sees clear parallels with the Simpson civil trial. The plaintiffs, he said, no doubt are thinking about Simpson’s bank account--at least in the context of trying to bankrupt the man they believe murdered their loved ones. “But unless I quite mistake the expression on Fred Goldman’s face, it’s not about money,” Kuby said. “It’s about justice or revenge, depending on your point of view.”

The concept of using the civil system for revenge--of turning to it as a backup if criminal prosecution fails--infuriates legal analyst Walter Olson, author of the 1991 book “The Litigation Explosion.”

He points out that in a criminal trial, where the defendant’s liberty is at stake, prosecutors must prove their case beyond a reasonable doubt. But in civil court--where the defendant can lose only money, not freedom--plaintiffs can win simply by showing a “preponderance of evidence” supporting their case. In addition, California permits non-unanimous verdicts in civil cases, so the plaintiff needs to persuade just nine of 12 jurors to win.

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“Lawyers should start apologizing about how they’re getting to, in effect, run a criminal proceeding in civil court,” Olson said. “What’s going on here ought to bother us--they’re saying that the most horrible accusations of the worst crimes can be pinned on people with . . . a far lower burden of proof.”

In fact, most civil proceedings--even most wrongful-death cases--do not spring from criminal acts. Typical wrongful-death actions involve product liability or medical malpractice. The family of a man crushed by a malfunctioning crane, for example, might sue the manufacturer for putting a dangerous product on the market. Or relatives of a woman who bled to death during surgery might sue the doctor for negligence.

“When a product causes a terrible injury, it’s almost unheard of to have a criminal prosecution. If an elevator falls or a product malfunctions, is the D.A. going to prosecute that? No way. The civil justice system is the only way people are able to bring corporate wrongdoers to task,” attorney Paul R. Kiesel said.

The Simpson case involves two types of civil lawsuits: the wrongful-death claim and the survival claim.

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Goldman’s parents, who divorced long ago, have filed separate wrongful-death claims seeking compensation for the loss of their son’s companionship. If jurors find Simpson liable for Ron Goldman’s death, they might well award each parent a different sum. Fred Goldman spent more time with his son, so arguably he suffered a greater loss; Sharon Rufo will probably present evidence showing that she was trying to rebuild her relationship with Ron in the last year of his life.

In a separate action, Ronald Goldman’s estate--represented by both his parents--has filed a survival claim.

The actual compensation sought is minimal: mainly reimbursement for property damage, which in this case is little more than the cost of the clothes that were slashed and bloodied in the fatal attack. But the survival claim could yield the biggest financial bonanza because it calls for punitive damages. If jurors deem Simpson a murderer, they can punish him by ordering him to pay the Goldman estate a huge sum.

Nicole Brown Simpson’s estate has also filed a survival claim seeking punitive damages. But her heirs--her two young children by O.J. Simpson--have not filed wrongful-death claims. No one else in her family has the legal standing to pursue such claims. The children, however, have the right to file wrongful-death claims until they turn 19--setting up the possibility of a third and even a fourth O.J. Simpson trial in the next century.

Experienced civil litigators described as unusual the Brown family’s decision to file only a survival claim.

They speculated that the Browns might be trying to spare Sydney and Justin Simpson the trauma of testifying against their father in court. In a wrongful-death action, the family would have to put on evidence about the children’s loss of maternal love; although they could try to prove their point by calling schoolteachers or psychologists as witnesses, the defense could force Sydney and Justin to testify.

Whatever the strategy behind the Browns’ decision, analysts said it could be risky.

Under California law, a survival claim can only be brought if a victim actually survives, at least briefly, the assault or accident that ultimately proved fatal.

The law governing survival claims is vague--it never clearly defines how long the victim must cling to life to qualify. So the very legitimacy of the Nicole Brown Simpson survival claim could be challenged.

“The trial judge might have to make a determination of law about how brief is brief,” UCLA law professor Gary Schwartz said.

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In the criminal trial, both sides agreed that the deadly attack lasted at least a few minutes. (The defense, in fact, argued that the assault was so long that Simpson would not have been able to kill both people and return home in time to catch his limo to the airport.) Conceivably, however, the defense in the civil trial could bring in experts to argue that neither victim survived long enough to be eligible for a survival claim.

Veteran litigators are hoping that courtroom debates about issues like survival claims and punitive damages in the Simpson case will help explain the civil justice system to a skeptical public.

Resentment at plaintiffs’ lawyers who air little grievances to win big judgments in civil court has long burbled through society, fed by oversized anecdotes about the woman who won millions because McDonald’s coffee was too hot, or the man who made a fortune suing BMW for a faulty paint job on his car. “I hope that the way this case is portrayed will help people understand why it’s important to have a civil justice system,” said Charles Mazursky, a former president of the Consumer Attorneys Assn. of Los Angeles, and that the system “works to give people who are victimized a remedy.”