Cosby sues his accusers: Does that make sense?

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

On Monday, Bill Cosby struck back against his accusers, filing an answer and counterclaims against the plaintiffs in court. For Cosby, the best defense may ultimately be a good offense.

Cosby’s counterclaims, filed Monday, consist of 1) defamation per se; 2) defamation; 3) tortious interference; and 4) intentional infliction of emotional distress.

From a legal standpoint, it’s a good strategy—albeit a scorched-earth policy. Cosby is being sued for defamation by seven of the dozens of women who have accused him of sexual assault; the plaintiffs claim that his attorneys’ representatives’ public responses to the accusations defamed them. His defense will attack the credibility of witnesses against him, seeking to prove they have intentionally fabricated these allegations for monetary gain. That theory of defense parallels his new counterclaims against the plaintiffs: that they are intentionally fabricating these claims for monetary gain.

There’s not really a lot of risk here for Cosby, either. Or, another way of looking at it: it couldn’t make things any worse.

Here’s how strong each of these counts are, taken slightly out of order.

Counterclaim 2: Defamation

To establish a defamation claim under Massachusetts law, four elements are required: (1) that the defendant made a statement, concerning the plaintiff, to a third party”; (2) that the statement was defamatory such that it could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either caused the plaintiff economic loss, or is actionable without proof of economic loss.

Counterclaim 1: Defamation per se

That last part of the last element is also known as “defamation per se,” which is actually Counterclaim 1. As a general rule, defamation requires proof that a plaintiff actually suffered a measurable economic loss. Your Aunt Edna’s nasty rant about you on Facebook may have made you cry, but it probably didn’t actually cost you money.

Even if you think it did, you aren’t likely to hire an expensive expert to prove it cost you money, either. That’s why many people threaten defamation lawsuits, but few actually file them. However, some defamation is considered so mean-spirited, so destructive, that a plaintiff can recover even without proof of economic loss. In Massachusetts, examples of defamation that can fall under this category are: 1) libel; 2) accusations of crimes; 3) accusations that plaintiff has certain diseases; and 4) statements that may prejudice the plaintiff’s profession or business.

Counterclaim 3: Tortious interference

In order to make out a case for tortious interference with prospective contractual relations, a plaintiff has to prove: (1) plaintiff had a business relationship or contemplated contract; (2) the defendant knew about the relationship; (3) the defendant interfered with it through improper motive or means; and (4) the plaintiff’s loss of advantage directly resulted from the defendant’s conduct.

This might be more difficult for Cosby to prove. He probably had many then-existing and prospective deals in the entertainment business. However, he will have to prove that the accusers were specifically aware of these contracts, and that they acted intending to interfere with those contracts.

If Cosby losing these contracts was an unintended or unforeseeable consequence of the accusations, then this will be a difficult claim on which to prevail. Indeed, the accusers might counter that they had no economic incentive to interfere with his contracts—if anything, the more Cosby works…the more money is available to satisfy numerous judgments if his accusers were to win their lawsuits.

Counterclaim 4: Intentional infliction of emotional distress

Candidly speaking, in the world of lawsuits, intentional infliction of emotional distress, or “IIED” as it’s called, is often just an afterthought; an add-on to a complaint. It always sounds great as a claim—who isn’t emotionally distressed on some level by the person they have sued? Practically, however, it’s not usually the strongest cause of action in a complaint, which is why it usually brings up the rear in the list of claims against a defendant.

To sustain a claim of intentional infliction of emotional distress, a plaintiff must show (1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant’s conduct was extreme and outrageous; (3) that the defendant’s conduct caused the plaintiff’s distress; and (4) that the plaintiff suffered severe distress.

The reason this is a tough one to win is because of the “extreme and outrageous” conduct standard. Courts have made clear that mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not qualify.

Bill Cosby is taken away in handcuffs after he received a prison sentence of three to 10 years in September 2018. The entertainer had been found guilty of drugging and sexually assaulting Andrea Constand 14 years ago.

Cosby, shown here in 1969, began his career in New York nightclubs as a standup comedian. His clean-cut style became a career mainstay.

Cosby feeds one of his children in the mid-1960s. Cosby first made his name with his comedic storytelling, often based on his childhood experiences. In 2011, SPIN magazine put "To Russell, My Brother, Whom I Slept With" at the top of its 40 Greatest Comedy Albums of All Time list.

Cosby won three Emmys for his portrayal of Alexander Scott, an Oxford-educated spy who travels undercover with his tennis-playing partner, Kelly Robinson (Robert Culp) in "I Spy," which aired on NBC from 1965 to 1968. Cosby was the first African-American to star in an American dramatic series.

In 1972, Cosby starred in "The New Bill Cosby Show," a variety program. Among his guests was Ray Charles, whose version of "Night Time Is the Right Time" would play such a standout role on "The Cosby Show" years later.

In 1972, Cosby helped create "Fat Albert and the Cosby Kids," a Saturday morning TV series that ran for more than a decade. It later became a 2004 live-action film starring Kenan Thompson as Fat Albert.

Bill —

Cosby's biggest TV hit, "The Cosby Show," premiered in 1984. Phylicia Rashad played his wife, Clair Huxtable.

After "The Cosby Show" was another sitcom, "Cosby," which aired from 1996 to 2000. Cosby played retired airline agent Hilton Lucas. The show also starred T'Keyah Crystal Keymáh.

President Bill Clinton chats with Cosby and TV correspondent Linda Ellerbee at a 1996 conference on children's television. Cosby, who has a doctorate in education, is a strong believer in using television to send educational messages.

In 1997, Cosby suffered the loss of his son, Ennis, who was fatally shot on the side of an Los Angeles freeway. Cosby's series' "Little Bill" used the phrase "Hello, friend" -- Ennis' regular greeting -- in tribute to his son.

Cosby shares a laugh with baseball great Hank Aaron after they both received the Presidential Medal of Freedom in 2002. The medal is America's highest civilian award.

Cosby and comedian Jerry Seinfeld embrace in 2009 at the annual awarding of the Mark Twain Prize for American Humor. Cosby declined the prize twice before accepting. His mother read Twain to him as a child -- a huge influence on his storytelling.

Cosby accepts the Marian Anderson Award in 2010 at the Kimmel Center for the Performing Arts in Philadelphia.

Cosby speaks at the 20th anniversary of the Rev. Al Sharpton's organization, the National Action Network, in 2011. In recent years, Cosby has been outspoken on the subjects of poverty, family and responsibility in the black community.

Cosby speaks in 2012 during the 100th anniversary celebration of the Beverly Hills Hotel & Bungalows supporting the Motion Picture & Television Fund and the American Comedy Fund. The comedian is active in several charitable causes.

Cosby performs at the Buell Theater in Denver in 2015.

Andrew Wyatt, a Cosby spokesman, raises his fist as Cosby exits a courthouse in Norristown, Pennsylvania, in June 2017. Cosby was facing three counts of aggravated indecent assault from a 2004 case involving Andrea Constand, an employee at his alma mater, Temple University. But it ended in a mistrial after a jury was unable to come to a unanimous decision. Constand was the first of more than 50 women who have accused Cosby of sexual misconduct. Cosby has denied wrongdoing.

The jury in Cosby's retrial found the TV icon guilty on all three counts in April 2018.

In pictures: Bill Cosby's rise and fall

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Instead, “extreme and outrageous” is only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. So in other words, it has to be really, really bad. Most conduct does not meet this high (or low, depending on how you view it) standard.

The best defense…a good offense?

Defamation cases are hard to win, but Cosby’s defamation counterclaims in this case are his strongest.

Cosby’s defense to these lawsuits is closely tied to his defamation counterclaims. Both will require him to show that his accusers are lying. While not as strong, this defense theory is also consistent with his other counterclaims. If Cosby is somehow able to prove that any accusers lied, he will still have to show that those deliberate fabrications and other conduct were intended to ruin his business relationships and cause him emotional distress.

As for his chances of prevailing? At first blush, it might seem hopeless for Cosby to actually sue his accusers. But consider this: The vast majority—if not all—of the evidence against him will be testimonial. Witness memory is notoriously fragile—and that’s true even if it hasn’t been eroded by the passage of decades. Also, witness credibility will be a factor, too.

Effective cross-examination can wilt the credibility of even seasoned, professional witnesses in front of a jury. If Cosby’s lawyers are able to exploit inconsistencies and discredit memories of the accusers on cross examination, then he could, theoretically, pull off the improbable and turn this case around on the plaintiffs.

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