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Some Thoughts on Civil Cases

Most people are aware that in criminal cases the burden of proof is “beyond a reasonable doubt”. If that were expressed in numbers it translates to about a 90% certainty that the defendant has committed the crime. But people often assume that this is also the necessary burden of proof in civil cases. This misconception has been commonly expressed in the wake of the NFL’s investigation into the New England Patriots and Tom Brady for their/his possible role in the “deflate-gate”scandal. As the press has reported, there merely needs to be a “preponderance of evidence”, making it more than a 50% chance – or “more probable than not”- that the party is liable. You may recall this language from the Ted Wells report. Indeed this is the standard for civil cases, including tort cases.

This distinction becomes apparent in the context of the O.J. Simpson trial. Simpson was found not guilty of two counts of first degree murder, but was later found liable by a civil jury in a wrongful death suit. In the civil case, there was a lower burden of proof needed to hold Simpson responsible. There is no inconsistency between those verdicts. In the instance when a defendant is found guilty in a criminal case (unlike Simpson), and then faces a succeeding wrongful death civil case the doctrine of collateral estoppel comes into play. Liability may be established by introducing the criminal conviction; if not established, it is at a minimum used as evidence in the subsequent civil case. This will happen in the civil action involving Aaron Hernandez.

In a civil case, there is a wide-open exchange of information, referred to as “discovery”. The plaintiff, the party suing, can gather information from the defendant and take his/her deposition. This is true even if the corporation is a defendant; that defending party has to produce records and present a witness to testify on designated topics. The witness need not be the most knowledgeable person either, something mistakenly thought to be the standard. At trial, the plaintiff is even permitted to call the defendant as a witness as part of his/her case. This, of course, could never happen in a criminal case with its Fifth Amendment protections to a criminal defendant.

The upshot of all this is that the standard of proof is very different between the two types of cases. Unfortunately, for Patriots fans, myself among them, the Wells report enjoys the lower expectations of the civil standard.

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