The DSK Affair: What Is a Civil Suit?
Published in Le Journal du Dimanche
(France) on 23 August 2011
by Vivien Vergnaud (link to
original)
Criminal proceedings against Dominique Strauss-Kahn came to an end Tuesday through the decision of New York State Supreme Court Justice Michael Obus. But Nafissatou Diallo's lawyers also filed a complaint on Aug. 8 in civil court in the Bronx for the same charges concerning what may have happened in the Sofitel Hotel suite in New York. Here's an overview of the ins and outs of such a procedure.
What Happens During a Civil Trial in the United States?
Contrary to France, criminal and civil law are separate in the United States. A civil trial "is very similar to a criminal trial," said Christopher Mesnooh to JDD.fr, partner in the Field Fisher Waterhouse firm and member of the bars of Paris, New York and Washington. "But there is no prosecutor, and therefore the investigation is not conducted by the prosecution," he adds. A judge is present and must ensure the smooth running of business and due process. As in a criminal trial, a jury is called upon to decide the case.
In criminal cases, the victim isn't compensated, but the possible culprit is punished with a sentence. As for civil cases, the jury must determine if the plaintiff has suffered an injury and whether or not to redress it. The jury consists of six people. For the possible DSK trial, it would be six U.S. residents of the Bronx chosen at random. However, lawyers of the former economy minister might seek to relocate the trial to Manhattan.
Can Lawyers Call Forward Any Witnesses They Want?
Yes. And this is how Nafissatou Diallo's lawyers have been putting pressure on the DSK camp since Tuesday, assuring that they have "been contacted by many women from all over the world who have testified" against DSK. "We will not give the number [of those women], because this issue is still under investigation," said New York attorney Douglas Wigdor at a press conference in Paris a few hours before the Tuesday hearing. Their choice of witnesses is "large enough because the stakes are less serious than in a criminal suit," said Mesnooh. In general, "the procedure is less cumbersome and the rules less draconian," he said.
How Does the Jury Decide in a Civil Case?
In criminal cases, the jury must express judgment "beyond a reasonable doubt," according to U.S. law. This and the contradicting statements of the maid prompted the Manhattan district attorney, Cyrus R. Vance, Jr., to drop the charges. In civil cases, the jury determines the "preponderance of the evidence." "There is nothing mathematical, but to illustrate my point, I'll say that in criminal cases we must be 80 to 100 percent certain. Whereas in civil cases, we must be at least 51 percent," Christopher Mesnooh points out.
How Does the Jury Decide on the Amount of Damages?
"It's sort of a 'feeling.' There's no price for each fondling committed. The jury must choose an amount depending on the assets and resources of the guilty party," analyzes the U.S. attorney. Acquitted of murder in 1995, former football star O.J. Simpson was nevertheless sentenced to pay $33.5 million to the families of the victims in a civil suit. And as you know, DSK is a rich man. If ever he was convicted, the authorities would be called upon to seize his assets primarily in the U.S. (His wife owns a house in Washington) and then in France.
What Weight Will Diallo's Credibility Have?
"The stakes are lower than in criminal cases, and the victim's credibility is less important. But if a jury is not convinced by her story, she will not be better served than in the proceedings that just ended in New York," said Mesnooh. And given the damning conclusions of the prosecution team, DSK's lawyers' only role will be to undermine the credibility of their opponent. They certainly have the means to weaken the “preponderance of evidence.”
Is an Agreement Between the Two Parties Possible?
Arrangements are the norm in civil cases in the U.S. According to various specialists, 95 to 99 percent of these trials end in this manner. Civil procedures are long and can last several years. Both parties can therefore compromise (at any time during the trial) to shorten the proceedings. "We must not forget that DSK can also bring a civil action against his accuser. A compromise could be both parties withdrawing their civil complaints," said lawyer Ron Soffer of the AFP. And if DSK does pay damages to Nafissatou Diallo, this act has a different image in the United States than in France. It is not an admission of guilt but a way to end the proceedings in the interest of both parties after negotiations.
What Happens During a Civil Trial in the United States?
Contrary to France, criminal and civil law are separate in the United States. A civil trial "is very similar to a criminal trial," said Christopher Mesnooh to JDD.fr, partner in the Field Fisher Waterhouse firm and member of the bars of Paris, New York and Washington. "But there is no prosecutor, and therefore the investigation is not conducted by the prosecution," he adds. A judge is present and must ensure the smooth running of business and due process. As in a criminal trial, a jury is called upon to decide the case.
In criminal cases, the victim isn't compensated, but the possible culprit is punished with a sentence. As for civil cases, the jury must determine if the plaintiff has suffered an injury and whether or not to redress it. The jury consists of six people. For the possible DSK trial, it would be six U.S. residents of the Bronx chosen at random. However, lawyers of the former economy minister might seek to relocate the trial to Manhattan.
Can Lawyers Call Forward Any Witnesses They Want?
Yes. And this is how Nafissatou Diallo's lawyers have been putting pressure on the DSK camp since Tuesday, assuring that they have "been contacted by many women from all over the world who have testified" against DSK. "We will not give the number [of those women], because this issue is still under investigation," said New York attorney Douglas Wigdor at a press conference in Paris a few hours before the Tuesday hearing. Their choice of witnesses is "large enough because the stakes are less serious than in a criminal suit," said Mesnooh. In general, "the procedure is less cumbersome and the rules less draconian," he said.
How Does the Jury Decide in a Civil Case?
In criminal cases, the jury must express judgment "beyond a reasonable doubt," according to U.S. law. This and the contradicting statements of the maid prompted the Manhattan district attorney, Cyrus R. Vance, Jr., to drop the charges. In civil cases, the jury determines the "preponderance of the evidence." "There is nothing mathematical, but to illustrate my point, I'll say that in criminal cases we must be 80 to 100 percent certain. Whereas in civil cases, we must be at least 51 percent," Christopher Mesnooh points out.
How Does the Jury Decide on the Amount of Damages?
"It's sort of a 'feeling.' There's no price for each fondling committed. The jury must choose an amount depending on the assets and resources of the guilty party," analyzes the U.S. attorney. Acquitted of murder in 1995, former football star O.J. Simpson was nevertheless sentenced to pay $33.5 million to the families of the victims in a civil suit. And as you know, DSK is a rich man. If ever he was convicted, the authorities would be called upon to seize his assets primarily in the U.S. (His wife owns a house in Washington) and then in France.
What Weight Will Diallo's Credibility Have?
"The stakes are lower than in criminal cases, and the victim's credibility is less important. But if a jury is not convinced by her story, she will not be better served than in the proceedings that just ended in New York," said Mesnooh. And given the damning conclusions of the prosecution team, DSK's lawyers' only role will be to undermine the credibility of their opponent. They certainly have the means to weaken the “preponderance of evidence.”
Is an Agreement Between the Two Parties Possible?
Arrangements are the norm in civil cases in the U.S. According to various specialists, 95 to 99 percent of these trials end in this manner. Civil procedures are long and can last several years. Both parties can therefore compromise (at any time during the trial) to shorten the proceedings. "We must not forget that DSK can also bring a civil action against his accuser. A compromise could be both parties withdrawing their civil complaints," said lawyer Ron Soffer of the AFP. And if DSK does pay damages to Nafissatou Diallo, this act has a different image in the United States than in France. It is not an admission of guilt but a way to end the proceedings in the interest of both parties after negotiations.