First things first: defamation is the publication of a false statement that causes you to be harmed in some way.
Whether these false statements have been personally relayed to others (such as in a gathering), published (such as in a newspaper or local publications), or made online (via social media), they have the power to harm, malign, or undermine you.
If you are now considering filing a lawsuit for defamation, you can start by consulting with a lawyer. But what does defamation really entail?
What are the legal elements of a defamation case?
A defamation claim can arise when one says anything damaging about another person. But defamation cases are quite complex, and a number of elements must be satisfied to say your case merits a claim.
The harm alleged in a defamation case is “damage to the plaintiff’s reputation and character in the community.” Damage to reputation can result in a loss of livelihood or a threat to one’s well-being.
The essential elements of a defamation case involve two things:
- A defamatory statement. A judge will typically determine if a statement is actually defamatory. There may be cases, however, where a jury may be requested to make the assessment.
- The statement must be published to someone other than the plaintiff and the defendant, i.e. other people are now involved.
The two types of defamation are slander and libel. To simplify the distinction between the two:
- Slander is spoken defamation to an audience (even an audience of one)
- While libel is written defamation to an audience. This may include video defamation or statements made on social media.
The initial meeting with your attorney
This is where you and your lawyer will make a determination on how strong your case is, or if you have enough for a case in the first place.
You must be able to provide your attorney with all the relevant facts pertaining to your case. And this includes any facts or issues that might actually work against you.
Remember: all this information will eventually come out in the open anyway, and your attorney is better off knowing everything right away so you can better prepare for your case. It is your attorney’s primary objective to give you the best advice and recommendations for your particular case, and so being upfront with all the necessary information helps better achieve this end.
Some tips for you to consider when meeting with your attorney:
- Bring a copy of the defamatory statement. A printout or screenshot might suffice. If it has been made online, bring shots of the comments as well.
- Come up with a list of people your attorney should talk to who might be helpful witnesses. These people might have information that can further strengthen your case.
- Provide documentation or records that can prove you have lost money (or lost employment) as a result of the defamatory statement.
As you discuss the details of your case, your attorney can tell you if you might be needing additional supporting documents, or if some of the material you’ve brought with you is unnecessary.
Steps in a defamation lawsuit
- Filing the complaint
Once you’ve met with your lawyer, a Complaint will then be filed. This puts the lawsuit into play, and keep in mind that it might take several months or even a couple of years before it even goes to trial– if it goes to trial at all.
- Service and Discovery
Once the lawsuit has been filed, the defendant must then be served. The defendant then has a window to time to respond in writing.
The court then issues a scheduling order, which gives all the deadlines in a case. This is when “discovery” now begins– the formal investigation undertaken by both sides.
Questions will be answered, documents produced, and you’ll likely be asked to back up your claims. Your attorney will work with you to address these questions and requests, much in the same way your side will also be gathering information to further strengthen your case.
Once sufficient information has been gathered, depositions can then occur. Depositions are interviews under oath during which the attorney for the defendant’s side asks you a series of questions.
Note that they will also take this opportunity to size you up and see what sort of witness you’ll be at trial, and how you might present your claims. Your lawyer will be on hand to help you prepare, as well as protect you from unfair play.
Both parties will be deposed, as well as other witnesses that may have important knowledge about your case.
- Settlement Negotiations
Once the discovery process has been completed, settlement negotiations can now begin.
Using the information that has come to light during the discovery process and depositions, attorneys from both sides make their own assessments of the likely outcome of the case and advise their respective clients about a settlement agreement (before the case proceeds to trial).
A lot of things come into play during negotiations, and it’s ultimately up to you (or both clients) to decide how talks could play out. Your attorney will, of course, give you a well-recommended course of action based on how strong your case might be, as well as various scenarios that are anticipated should you decide to proceed through trial.
Go through your options with your attorney. Consider all the different scenarios that can play out when you’re thinking about the possibility of settlement.
A Final Word
Defamation is a serious charge and in the interest of minimizing frivolous lawsuits, several conditions must be satisfied in order to even say you have a case.
The process of building a defamation case, as well as the road to trial, is long and arduous. You’ll have to establish many facts, you’ll have to face the defendant, and back up your claims to have a solid case.
Through it all, however, your attorney stands as your voice of reason. Make sure you get the most out of your lawyer’s good counsel by giving all the information needed to make the proper assessments and recommendations. Be forthcoming, be cooperative, and trust your attorney to give you the best possible advice.
*In no way is Radio Law Talk or its affiliates or hosts giving legal advice. Seek legal counsel. Radio Law Talk does not guarantee the full accuracy of these blogs as most situations are unique unto themselves and some or all of these blogs may not apply. Laws constantly change or may be interpreted differently. Each state laws may differ, along also with federal laws. Do not use this blog as advise in any way.
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