|
 But last month, she found a fresh approach to fight the
former host of "The Apprentice," who has vehemently denied her
allegations that he groped her in 2007. By professing his
innocence, the man who is now president of the United States had
effectively called her a liar, Servos alleges in a defamation
lawsuit.
The suit copied a rare legal tactic employed most notably by
several women who have accused the actor and comedian Bill Cosby
of sexual assault: using his denials as the basis for a
defamation claim.
It is not uncommon for high-profile allegations against
celebrities to prompt defamation lawsuits, but they are usually
filed by the star against the accuser.
In 2014, however, Joseph Cammarata, the attorney for Cosby
accuser Tamara Green, realized he could adapt that strategy for
his own purposes after Cosby's lawyer issued a statement calling
the allegations "fantastical."
Like many other Cosby accusers, Green was unable to sue for
assault because the alleged incident occurred decades ago.
"A direct claim for the assault is not available, so I came up
with the idea that a defamation claim would be the appropriate
vehicle to use to address the underlying harm," said Cammarata,
whose lawsuit now includes seven Cosby accusers as plaintiffs.
All told, 10 Cosby accusers filed four defamation lawsuits in
three states.
In simple terms, the argument is that Trump and Cosby have
effectively branded the women as liars by denying the incidents
occurred. But the women face a difficult challenge in making
their cases, experts say.
"Merely saying, 'I didn't do it,' is traditionally not seen in
defamation law as calling your accuser a liar, even though
logically that's what it means," said Rod Smolla, dean of the
Delaware Law School and a First Amendment scholar.
"But if you go beyond that – if you go from, 'I didn't do it,'
to, 'She's a liar,' now you have arguably made a statement of
fact" that could be subject to liability, he added.
Trump's status as president does not shield him from civil
liability for actions he took prior to assuming office.
In a statement on Tuesday, the attorney defending Trump in the
Zervos lawsuit, Marc Kasowitz, said he and Trump's personal
lawyer would soon file a response to the lawsuit.
"President Trump continues to deny any allegation of wrongdoing
raised in said complaint," he said.
Cosby, 79, who faces allegations of sexual misconduct from
approximately 50 women, has also denied any wrongdoing.
[to top of second column] |
BURDEN OF PROOF
The Cosby and Trump plaintiffs are taking on a tough double burden,
experts said.
First, the only way to show the denials by both men are untrue is to
prove the incidents took place as described.
"The burden is going to be on her to show that Trump is actually
saying something that's false," Clay Calvert, a First Amendment
expert at the University of Florida, said of Zervos.
In addition, the women must show Trump and Crosby crossed the line
into defamation by deliberately making false statements that
seriously harmed the accusers' reputations.
In defamation cases, courts typically examine statements to
determine whether they were factual or opinion, as expressing an
opinion is generally protected by the First Amendment.
Making that distinction can be challenging. In the Cosby cases, for
instance, judges have split on whether the lawsuits should proceed,
even coming to opposite conclusions regarding the same statement
from his attorney.
U.S. District Judge Mark Mastroianni in Massachusetts rejected
Cosby's attempts to have two cases, including Green's lawsuit,
thrown out. In his rulings, the judge found that a November 2014
statement from Cosby's lawyer calling the allegations
"unsubstantiated, fantastical stories" could be reasonably seen as
factual, and therefore potentially defamatory.
By contrast, a Pittsburgh federal judge, Arthur Schwab, tossed a
similar case against Cosby, finding that the same statement was
"pure opinion" and thus protected.
Unlike Cosby, who has been fairly circumspect in his public
statements, Trump has aggressively attacked his accusers, calling
the claims "100 percent fabricated and made-up." His rhetoric could
make him more vulnerable to a defamation claim, experts said.
Trump has said he never met Zervos at a hotel, despite her
allegation that he groped her at a hotel in Beverly Hills,
California.
That type of specific fact-based assertion can also make it easier
to show defamation if it can be proven false, according to Eugene
Volokh, a law professor at the University of California in Los
Angeles.
"So much depends on the particular statement and the particular
context surrounding that statement," he said.
(Editing by Frank McGurty and Dan Grebler)
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