I won’t bury the lead. If you want me to determine whether you have a viable defamation action, here is the information I need. It’s your defamation homework.
I need to know exactly what was said, and when.
When you sue for defamation, you are suing for something that was said or written about you or your company. Therefore, the complaint that is filed with the court must allege EXACTLY what was said or written that you are claiming was false and defamatory.
The most efficient way for me to determine whether you have a viable defamation action is for you to provide that information. If there is only one statement, then that is all you will list, but if there are multiple statements you deem to be false and defamatory, then limit your list to the five most egregious examples. If I read those five and determine that they won’t support a defamation action, then 95 additional statements that are even less egregious probably won’t make a difference.
Provide any necessary context.
The statements will determine the viability of the action, so I only need context to the extent necessary to understand those statements. For example, if you tell me you want to sue because someone said, “he never graduated from college,” I’d need to know why that is harmful. A statement is not defamatory just because it is false. If you hold a college degree and someone says you don’t, that is not necessarily defamatory because there is nothing wrong with not holding a college degree. But if the context is that you applied for a position requiring a college degree, and someone called the prospective employer and falsely claimed you don’t have a degree, that would clearly be defamatory.
Explain why the statement is false.
You get the idea. Give me the necessary context to understand why the statement is harmful to your reputation. And as obvious as it may seem, be sure to explain why the statement is false. This often comes up in the context of posted videos. Someone took a video of an interaction between the caller and some third person, and posted it on the internet. They send me the link and say they want to sue for defamation. When I ask how the video is false, they respond, “well there’s nothing false, but it makes me look really bad.” Defamation requires a false statement.
Don’t go back more than a year.
Next, the statute of limitations for defamation is just one year, so I need to know when the statement was made.
For statements posted on the internet, the one year statute of limitations runs from the date of first publication. If the statement was written or stated, and you did not know about it until recently, then you may be able to move forward under the discovery concept.
Who will testify to the defamatory statements?
I also need to know who will voluntarily testify to the defamatory statements. If the statements are contained in a writing, that makes it pretty easy, so long as we have someone who can testify to receiving the writing. If the statements were verbal, then we need a witness who will voluntarily testify to the statements. If you want to understand why the witness must be voluntary, read this article. Sometimes there won’t be any evidence beyond your own testimony, but I need to know what is available.
Put it all together.
So the summary you provide to me should look something like this:
1. On April 4, 2022, during a lunch meeting held at B.J.’s restaurant in Irvine, Joe Dokes said: “David is embezzling money from the company by taking dates to costly restaurants, and claiming they discussed business in order to charge it to the company.”
I work at Acme Distributing as an account manager, and Joe Dokes is another account manager who is hoping to take over my territories. The statement was false because I have never taken a date to a restaurant and billed it to the company. This can be proven by a simple accounting of my expense reports. I have only twice taken potential clients to restaurants, and both subsequently did business with the company. I can provide the names of both, and both will confirm they were not dates. I can testify to the statement made at the meeting, and my assistant, William Daniels, has confirmed that he will testify to the statement.
It’s that simple. Just provide a similar summary as to each statement you are claiming harmed your reputation.
I need the actual quotes.
For some reason, this is the most challenging part of the homework assignment for some callers. They write back with, “I was accused of rape.” We are required to set forth the EXACT statement made, not a summary. It may well be that you don’t yet know the exact quote, but that likely means that we don’t yet have a viable action.
People love to gossip, so perhaps a coworker said to you, “Watch out for Jane. She’s telling everyone that you discriminate against women.” But that bit of information is not enough. We need to know what was said. Perhaps the full quote was, “That frickin’ Joe. I pulled into the parking lot this morning and he snaked the spot I was about to pull into. He would not have done that if I were a man. He totally discriminates against women.” That would not be defamatory for the reasons set forth in this article. If all you heard was the gossip, you need to go back to your coworker for the exact quote.
Why are you making me work so hard?
Sometimes a caller will ask why I am assigning this task to them, instead of making it part of my legal representation. There are multiple reasons.
First, I can’t put the cart before the horse. I can’t start making calls until I have confirmed that there is a viable action.
Second, the screening process goes two ways. The client is deciding if they want me as their attorney, and I am deciding if I want to represent the client. Litigation requires a great deal of time from both the client and the attorney. The client will need to gather paperwork, respond to discovery responses (with my assistance), sit through depositions, etc. If they are unwilling to devote the time to this initial homework assignment, then they probably won’t want to do so as the litigation progresses.
And finally, why pay me to gather this initial information? Finding out if William Daniels is willing to testify to what was said will take you seconds, whereas giving me his contact information so that I can play telephone tag until I reach him is far less efficient. Plus, people are always leery when they receive a call from an attorney. He’ll probably just tell me that he needs to check with you before speaking to me.
The law regarding defamation.
The information provided above should be sufficient for you to prepare the necessary summary. But for extra credit on your homework, perhaps even a gold star, you might want to read further, to better understand the elements of defamation.
Here are the elements of defamation:
The elements are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.
We’ll quickly examine each element.
(a) Publication
The use of the word “publication” is confusing to some. An example would be a caller who wants to sue a neighbor, because the neighbor came to their front door and falsely accused them of some criminal act.
“You can’t be defamed to yourself,” I say, “the statement must be published to a third person.”
“Do you mean ‘published’ like in a newspaper? No, they just said it to me.”
Published just means put out into the world, either verbally or in writing. Defamation is actionable because we recognize that one’s reputation has value, and that one should be able to recover for loss of reputation. But it would not make sense to allow you to recover for loss of reputation for something said only to you. If someone lies about you only to you, there is no loss of reputation.
(b) False
The statement must of course be false, but that simple element is often more complicated than you might think.
The statement must be offered as a true statement, and sometimes the nature of the statement makes clear it is not being offered as such.
Someone once called, wanting to sue for defamation, because a cashier had referred to him as “crazy” in front of other people. He tried to pay with a Discover card, and when the cashier refused that payment method, he said he had paid with his Discover card just days earlier. She responded, “You’re crazy; we haven’t take Discover for years.”
The statement was not meant to state that the customer had a mental disorder. It was just a colloquial way of saying, “you don’t know what you’re talking about.”
(c) Defamatory
Every time I provide the elements of defamation, I recall one of my elementary school teachers, saying that you can’t use the word you are defining to define the word. Stating that defamation is something that is defamatory seems circular to me.
The point of the element is simply to require that the statement is such that it causes harm to reputation. This is defined by Civil Code § 45 which provides that defamation (libel) is a statement “which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
If I say you drive a red car, while in fact you drive a blue car, I have told a lie about you, but it is not defamatory because you would not be hated or shunned because you were falsely accused of driving a red car.
(d) Unprivileged
Here is the biggie that trips up most callers. For various policy reasons, certain statements are privileged, and cannot be the basis for a defamation action. Those privileges are set forth in Civil Code § 47, which you can find in its entirety at this link, but to summarize, you can’t sue for:
1. Anything said at a legislative or judicial proceeding, or at any other official proceeding authorized by law; or
2. Anything said in a court document or said in relation to a court proceeding; or
3. Anything said by a prior employer, to a prospective employer, so long as the statement was not made with malice.
Callers often want to sue for lies told in court or contained in court documents. The Litigation Privilege is absolute. You can’t sue for statements related to litigation.
(e) Has a natural tendency to injure or that causes special damage.
This is related to element (c). The statement is not defamatory just because it is false. It has to have a tendency to injure, or cause special damage, such as loss of income.
And while I have your attention, the law requires that special damages be alleged with specificity. A business can’t, for example, simply allege that because of the defamation they have lost business. Or an individual can’t just allege that because of the defamation, they are unlikely to find employment. To properly allege special damages, the allegation should be something like: “On August 11, 2022, Plaintiff was extended an employment offer by Microsoft as a programmer, with an annual salary of $250,000. On August 15, 2022, Microsoft withdrew that offer, citing the statements by Defendant as the reason.”
But only the allegations re special damages need to be this specific. Defamation is unique among torts in that if all the above elements are proven by the Plaintiff, actual damages need not be shown. The law recognizes that one’s reputation has value, and the jurors are instructed that they MUST award damages if defamation is proven. These are the “assumed” damages.
In terms of these assumed damages, the calculation is akin to damages for pain and suffering in a personal injury action. In both cases, the jury arrives at a figure calculated to compensate the victim for the injury suffered, even though there is no precise means to quantify that number.
But don’t take this too far. That same jury instruction states that “damages can be nominal.” If the defamatory statements were outrageous, and it is clear that the Plaintiff suffered extreme loss of reputation, the jury will likely award assumed damages that reflect those realities. But if the defamation was slight, and the audience was limited, the damages may be very small.
Many years ago I defended a crotchety defendant who, in a “get off my lawn” tirade, had accused a neighbor of criminal conduct in the presence of others. The target of his tirade decided to make a federal case out of it, and sued for defamation, spending probably tens of thousands of dollars in attorney fees to take the case all the way to trial. I agreed to represent the defendant only because it was outrageous that the plaintiff was seeking a fortune in damages for a remark that was clearly just spoken out of anger, and was not offered as a true statement.
All the elements of defamation were there — my client had said what he had said — but I convinced the jury to award the plaintiff just $1. It was clear that no one present had believed what my client had said, specifically because he was well known as the crotchety neighbor. So how had plaintiff suffered any loss of reputation? Technically plaintiff won the case, but attorney fees are not recoverable in a defamation action.
What about punitive damages?
After I explain to a potential client that their case is not economically viable because the cost of prosecution would far exceed what they are likely to recover, they will sometimes ask, “But what about punitive damages?”
Punitive damages are indeed recoverable in a defamation action. Such damages are designed to punish defendants for their bad conduct, to deter them and others from engaging in such activity in the future.
But punitive damages are not unmoored from reality. The law requires them to be proportionate to the damages suffered. There is no hard and fast measure of what punitive damages can be in proportion to the compensatory damages, but one naturally dictates the other.
Take the $1 jury verdict discussed above as an example. The jurors did not see any loss of reputation, and thus awarded just $1. Those same jurors are not then going to turn around and award significant punitive damages in order to discourage that behavior in the future. They just did not see the behavior as a big deal.
Conversely, if the jurors were offended enough that they awarded $500,000 in compensatory damages, that does not mean that punitive damages will follow. Punitive damages are judged by a different standard. The jury must find by “clear and convincing” evidence that the defendant acted with “malice, oppression, or fraud.”
If the defendant tells a lie about the plaintiff based on some mistaken understanding of the facts, that would not support punitive damages. The defendant was just wrong, not malicious (although malice can sometimes be shown by a defendant’s flagrant failure to check the facts).
My own policy (other attorneys may differ) is that I don’t consider the potential punitive damages when determining the viability of a case. If the actual and assumed damages are insufficient to warrant moving forward, then punitive damages likely won’t be significant, if awarded at all.
But what about my reputation?
I fully recognize that defamation actions are not always about the money. Some plaintiffs are fully prepared to spend more than they will recover, just to have an official court decree stating that the statements made by defendant were false and defamatory. That is a perfectly laudable goal, but you still need to know the cost of achieving that goal so you can make an informed decision.
The post If You Want to Sue for Defamation, Here’s Your Homework appeared first on Internet Defamation Blog.