Editor's note: We asked sports lawyer Dan Werly to answer our questions about the civil assault lawsuit that Derrick Rose is facing. Rose's accuser filed documents with the court on Oct. 26 indicating that she is seeking $21.5 million in damages.
Is this case similar to Kobe Bryant's case from a few years ago?
Yes and no. Bryant's case began with criminal charges being filed against him. The charges were dropped when his accuser refused to testify against him. His accuser then brought a civil suit, which was later settled out of court.
For Rose, there is only a civil (and no criminal) case against him, and, therefore, he faces no jail time or probation. This case is all about money.
Another key difference between criminal and civil cases is the burden of proof. In criminal cases, a prosecutor must show that the defendant is guilty beyond a reasonable doubt—that there is no other logical explanation. In civil cases, the standard is the lower preponderance-of-the-evidence standard—that culpability is more likely than not.
What would the accuser need to demonstrate, in order to prove that her allegations are true?
Rose's accuser alleges nine separate causes of action against Rose. However, the focus of the case will revolve around her first cause of action, sexual battery (rape) under California law. In order to prove this cause of action, Rose's accuser must show that: 1) Rose intended to cause a harmful contact; 2) a sexually harmful contact occurred; 3) Rose's accuser did not consent to the contact; and 4) Rose's accuser was harmed or offended by his conduct.
How long could the trial last, and when would it be?
It would be a relatively short trial. According to the court filing, the parties estimate that the trial would last 7-8 days. Based on the court's current schedule, the case projects to go to trial in late 2017 at the earliest.
What is the likelihood this will be settled out of court?
It is difficult to say. However, it is unlikely that this case will ever go to trial.
Rose's attorneys have taken a stance that he is completely innocent and have indicated that they are planning on filing a motion asking the judge to throw out the case because the plaintiff has no factual backing for her claims. If this motion is successful, there will obviously be no settlement. If it is not, Rose may settle rather than having to deal with the public spectacle of taking the case to trial.
What are the pros and cons of going to trial, instead of settling?
Pros: If Rose believes that he is completely innocent, a trial is the best place to set the record straight (see Thabo Sefolosha's criminal trial). Also, if he wins at trial, he will have to pay nothing to his accuser.
Cons: Whenever a jury is involved, there is some degree of uncertainty even if Rose believes the evidence weighs heavily in his favor. Furthermore, even if Rose completely wins at trial, he still will have to pay a hefty sum in attorney's fees.
Although in this instance clearing his name is likely more valuable than the cost of attorneys, many litigants determine that it is more cost efficient to settle a case rather than taking it to trial.
Also, this case could drag on for years before it goes to trial. Rose may elect to settle early so the case is no longer hanging over his head.
Will the public ever know what really happened if the case is settled out of court?
Not entirely. Depending on the timing of settlement, portions of depositions (including Rose's and/or Rose's accuser's) of this case might be released to the public, giving glimpses of each side's version of the facts under oath. But we still would not know the whole story.
Any settlement is likely to include a non-disparagement clause that would prevent Rose's accuser from further discussing the details publicly.
Can Rose countersue?
If Rose wins at trial, he could sue his accuser for malicious prosecution (abuse of the legal system) and/or defamation (damage to his reputation). However, either cause of action would be very difficult for Rose to prove, and it is unlikely that he would pursue such a lawsuit after his name is already cleared at trial.