How to Defend Yourself in a Defamation Claim
You can be sued for defamation if you publish a false statement about someone which causes them injury. To be held liable, you must have been either negligent or reckless with respect to the statement’s accuracy. In order to defend yourself from the claim, you need to first identify the allegedly defamatory statement. Then you should meet with a qualified attorney to come up with your defences.
Gathering Evidence for Your Defense
Read the complaint.A plaintiff starts a lawsuit by filing a complaint in court. You will be sent a copy along with a summons. You should read the complaint and find out what statement the plaintiff believes is defamatory.
- Also note the deadline for responding to the claim. This information should be on your summons.
Gather evidence of publication.In order to be sued for defamation, you must have intentionally or negligently published a false statement to a third party, which causes injury to the plaintiff.Accordingly, to defend against a defamation claim, you should search for proof that you made the statement to another person.
- Look for emails you might have sent. A defamatory statement only needs to be published to one person. See if you did, in fact, make that statement.
- Also look at your social media accounts. You can publish something by posting it on Facebook, Instagram, Twitter, or other social media.
- If the plaintiff alleges that you told a person the defamatory statement face-to-face, write down your memories of the incident. Who else witnessed your conversation? What did you say (based on your memory)?
Find evidence of your fact-checking.It is not enough that the defamatory statement be false. You also must have been careless about its truth. In order to be liable for defamation, you must also have made the false statement negligently or intentionally, depending on whether the plaintiff is a private citizen or a public figure.To defend yourself, you can show that you were sufficiently careful trying to find out if the statement was true or not.
- For example, you might not have published the statement until you heard it from two sources. Or you might have reached out to people with opposing views to get a different side of the story. These actions would show that you took some care to find out the accuracy of the statement before publishing it.
- Pull together your fact-checking notes and drafts, as well as the names of your sources. Your lawyer will want to see what steps you took to confirm the statement’s accuracy.
Meet with a lawyer.Defamation law is state law, and only a qualified attorney can advise you on the details in your state law. You should meet with an attorney to talk about your case. To find a qualified attorney, you can visit your state or local bar association, which should run a referral program.
- Many attorneys now offer half-hour consultations for free or for a reduced fee. If the plaintiff hires a lawyer, then you should think about hiring one to defend you as well.
- If you are worried about how much it costs to hire a lawyer, then you should realize that most states now allow lawyers to offer “unbundled” legal services (also called “limited scope representation”). Under this arrangement, the lawyer doesn’t take over the entire case. Instead, the lawyer only does the tasks you give him or her to do. For example, you could hire a lawyer to draft court documents, coach you, or represent you at trial.
Come up with defenses.When you meet with your lawyer, you can discuss what defenses to raise. There are several defenses you can make which will allow you to defeat the defamation claim.
- Truth. Truth is an absolute defense to defamation.You should gather whatever proof you have that the statement is true: other witness testimony, an admission by the plaintiff, etc.
- The subject is a public figure. If the person is a public figure, then you must have made the statement with “actual malice.”This means that you either knew the statement was false or you had serious doubts about the statement’s accuracy when you published it. This defense often protects reporters who report on politicians, celebrities, and other well-known figures.
- Consent. Consent is also a complete defense.Look for any interview waiver form that the plaintiff might have signed.
- Opinion. If the allegedly defamatory statement is actually an opinion, then you cannot be held liable.
- Retraction. You can also defend yourself by retracting the defamatory statement and apologizing. This will often prevent a defamation suit from going forward.
Identify privileges.There are many kinds of “privileged” statements that are protected from defamation claims. Most of these privileges are fact specific: they depend on who is making the statement and for what purpose. To fully understand any relevant privileges, you should talk with your lawyer. Some common privileged statements are:
- Any statement made during a judicial proceeding (like a trial) is immune from a defamation lawsuit.
- Statements between spouses are also absolutely immune from defamation claims.
- A statement made in self-defense or made with the intent to warn others may be immune from a defamation claim.
- Published film or book reviews that are fair criticism may also be immune.
Responding to the Claim
Draft an answer.You need to formally respond to the plaintiff’s lawsuit. You can do this by drafting and filing an answer. In the answer, you respond to each allegation and also raise any affirmative defenses (like truth or consent) that you have.
- Your lawyer can draft the answer. Alternately, you can use a printed “fill in the blank” answer form that your court may have created.Stop into the courthouse and ask if a form is available.
- After drafting the answer, make several copies. One will be for your records and another will be for the plaintiff.
File the answer.Take the original answer and all copies to the court clerk and ask to file. You may have to pay a filing fee, which will vary by court. Have the clerk stamp all of your copies with the date.
- After you file, you need to send the plaintiff a copy of your answer. If the plaintiff has a lawyer, send the copy to the lawyer instead.
- Ask the court clerk for what methods of service are acceptable. Generally, you can have someone 18 or older who is not a party to the lawsuit deliver the answer, or you can mail it.
Exchange information with the plaintiff.Once you have filed your answer, the lawsuit enters a fact-finding phase called “discovery.” In discovery, you and the plaintiff can request information from each other. Discovery can last for a long time—up to a year in some situations.
- You can request the plaintiff produce documents related to the lawsuit. For example, you might want proof that the plaintiff suffered harm. If she or he claims that contracts were cancelled because of the defamatory statement, you will want proof that the contracts were cancelled, such as letters or emails.
- You can also give the plaintiff written questions (called “interrogatories”) and have him or her answer them under oath. Interrogatories are a good way to get basic information about the lawsuit. For example, when a plaintiff claims to have suffered emotional stress from the defamation, you can ask for the name of any attending physician who treated him.
- You can also ask oral questions in a deposition. Depositions usually take place in a lawyer’s office with a court reporter present. Sometimes depositions are videotaped. If for some reason the witness cannot attend trial, deposition testimony can sometimes be introduced.
Resolve the dispute out of court, if you want.You can always try to settle disputes outside of court using alternate dispute resolution (ADR) techniques. The most common are settlement negotiations, mediation, and arbitration.
- Settlement negotiations. In negotiation, you and the plaintiff meet with your attorneys to come to a resolution. Typically, you will have to agree to pay the plaintiff some money, or at the least retract your statement and issue a public apology. One benefit of negotiation is that you avoid the long, drawn-out trial process.
- Mediation. Mediation is a form of “assisted negotiation.” The guide is a neutral third party, the mediator, who listens to you and the plaintiff describe the dispute. The mediator is not a judge; instead, he or she helps the two parties come up with a resolution that is acceptable to both.
- Arbitration. Arbitration is like a trial. You and the plaintiff present your case to an arbitrator or a panel of arbitrators, who act like judges. Unlike negotiation and mediation, arbitration is not voluntary. Instead, you agree ahead of time to be bound by the arbitrator’s decision.
File a motion for summary judgment.After discovery has ended, you or the plaintiff can file a motion for summary judgment. In this motion, you argue that there are no issues of material fact in dispute and that you are entitled to judgment as a matter of law.In effect, you argue that a trial is unnecessary because the law and facts so clearly favor you.
- If you win the motion for summary judgment, then the case is dismissed and you win. Alternately, if the plaintiff wins his or her summary judgment motion, then you will lose the case and have to pay money damages.
- If you want to file this motion, then you should hire an attorney. Summary judgment motions require extensive familiarity with defamation law in your state.
Defending Yourself at Trial
Arrive early to court.Ideally, you should get to the courtroom 15 or more minutes before the case is scheduled to begin. Make sure you leave enough time to park your car and pass through security.
- Before entering the courthouse, turn off your cell phone and anything else that might make a noise. Also consume all food or drinks before entering court.
Pick a jury.You and the plaintiff could decide to have the case heard by the judge without a jury. However, if either one of you wants a jury, then you will have to select a jury. The jury selection process is called “voir dire.”
- Voir dire begins with the judge calling up a panel of prospective jurors. The judge then asks them questions, such as whether they know either you or the plaintiff and whether they can be fair and impartial.
- If a juror cannot be fair, then you can ask the judge to dismiss the juror. You also might get a certain number of “peremptory challenges.” With these, you can remove a prospective juror from the panel without having to give a reason.
Deliver your opening statement.Each side makes an opening statement, which starts the trial. You should think of your opening statement as an outline or roadmap of the evidence. You need to tell the jury what evidence you will present and what that evidence proves.
- You should try to keep your opening statement short. Jurors have short attention spans, and you only need to provide a sneak peek of the evidence.
- Try to get the important facts before the jury. For example, you could say, “Ladies and gentlemen, on April 23, 2015 the defendant received a call at her office informing her that the mayor’s son had been arrested for DUI. Immediately after receiving the call, the defendant called the police station to confirm the report of the story and spoke to Maurice Locke, a sergeant at the station. As the evidence will show, Sergeant Locke confirmed that the mayor’s son had been arrested.”
Cross-examine the witnesses for the plaintiff.The plaintiff will present his or her witnesses first. As the defendant, you need to undermine their credibility. You can accomplish this by highlighting inconsistencies in the stories the witnesses tell.
- For example, a witness might state at trial that you told a roomful of people the defamatory statement. However, you can draw out that the witness admitted in a deposition that he was in and out of the room for long periods of time and never actually heard the statement made. By drawing out this information, you undermine his credibility.
Testify on your own behalf.You should anticipate having to testify at trial. If you have a lawyer, then your lawyer will ask you questions. If you are representing yourself, then you can often deliver your testimony by making a speech to the judge or jury before being cross-examined by the plaintiff. Remember the following tips for giving effective testimony:
- Dress conservatively. Jurors will judge you based on your appearance. If you don’t know how to dress for court, see Dress for a Court Hearing.
- Sit up straight and look at the attorney questioning you. When you begin your answer, turn and make eye contact with the jurors.
- Always try to be brief in your answers, but don’t be evasive. A lawyer will manage to get information out of you anyway, so there is no point in trying to hide it.
- Don’t guess. If you don’t know the answer, say, “I don’t know.” If you don’t understand the question, ask the attorney to repeat it or rephrase it.
- Speak clearly and confidently. You have nothing to be afraid of; you are only telling the truth.
Present your own witnesses.You will present your witnesses after the plaintiff does. You will only want to call witnesses who can somehow help you prove a defense.
- For example, the plaintiff might have given you oral consent to publish information about her. You could call a third party who overheard the plaintiff give you consent.
- Also, you could call as a witness someone who can confirm that the defamatory statement is true. For example, if you published that someone stole money from a business, then you can call as a witness someone who saw the plaintiff steal.
Make your closing argument.After each side has presented witnesses, they will deliver closing arguments to the jury. In your closing argument, you will need to remind the jurors of the key evidence. You need to convince them to find in your favor by explaining how each piece of evidence supports your interpretation of events.
- One way to make this argument is to show that the plaintiff didn’t prove some element of her case. For example, she might not have shown that you actually published the statement to anyone else. Or the plaintiff might have failed to prove injury.
- You can also argue that you used sufficient fact-checking and therefore were not reckless (if the plaintiff is a public figure) or negligent (if the plaintiff is a private person).
Wait for the jury’s verdict.The judge will charge the jury with instructions and then the jury retires to deliberate. If you decided to take a bench trial, then the judge might not make a decision for a couple of weeks or months.
Appeal, if necessary.Should you lose, you have the option of filing an appeal. You should talk this over with your lawyer. An appeal might take a year or more to be resolved. It might not be worth your time to appeal.
- You begin the appeal process by filing a Notice of Appeal.Ask the court clerk for the form.
- Every state requires that a plaintiff bring a defamation lawsuit within a certain amount of time after publication of the defamatory statement. The deadline is listed in your state’s statute of limitations. If the plaintiff has waited too long, then you can get the case dismissed by raising this fact in your answer.
Video: Defending Yourself Against Defamation Claims
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