Last Updated on March 30, 2021 by Legal Team
Defamation: Fighting for Your Reputation
Creating and upholding a good reputation is not easy. Sometimes, a person will publicly write or speak a lie about you that causes harm to your reputation. Did you know that you can actually sue the person who said or wrote the defamatory statements? In this article, we have laid out what to expect when fighting to rehabilitate your reputation.
The Basics of Defamation
Defamation is a broad term that covers any statement that hurts someone else’s reputation. Defamation is a civil wrong, enforced in civil court.
Two Types of Defamation
Libel – which involves a written statement
Slander – which involves a spoken statement
The Elements of Defamation
What qualifies as defamation may vary by state, but all states use the same general principles. The following are the core requirements in proving that defamation occurred.
1. Someone made a statement
A statement must be spoken, written, or expressed in another manner.
2. The statement was published
To be published, a third party must have seen, heard, or read the statement. The statement does not need to be printed as a statement that is overheard is considered published.
3. The statement was false
Only false statements can be defamatory. A truthful statement is not defamatory, even if it damages a person’s reputation.
4. The statement caused an injury
The statement must have caused harm to the plaintiff’s reputation. For example, damage to the reputation can be demonstrated by somebody losing a job because of what was proclaimed.
5. The statement was not protected
There are circumstances in which a false statement does not arise to the level of defamation. These include opinions, statements made by lawmakers, and false statements made by a witness testifying in court. Also, any true statement is completely protected.
Defamation of Public Figures and Officials - Requiring Malice
A public figure or official has a higher standard to prove to establish defamation. In addition to the requirements above, one must also prove that the defendant acted with actual malice. This means that the statement could not have been an honest mistake and was made with the actual intent to harm the public figure. To qualify as actual malice, the person making the statement must have known that the statement was false when making it or did not care if it was true or not.
Damages for Defamation
Once defamation is proven, the plaintiff can recover for monetary damages suffered as a result of the statement. These include any lost earnings, future lost earning capacity, and other lost business or economic opportunities they suffered.
If the defamatory statements caused the plaintiff to seek medical or mental health treatment, they may also be able to recover for medical costs.
Some states allow plaintiffs to recover non-economic damages in defamation cases, such as pain and suffering, similar to any other personal injury lawsuit. Pain and suffering includes mental pain and suffering, along with mental anguish, emotional distress, loss of enjoyment of life, and anxiety. These injuries can be proven by appetite loss, lack of energy and sleep, or mood swings.
Furthermore, non-economic damages include damage to the plaintiff’s standing in the community and reputation, personal humiliation, shame, and disgrace.
Differing State Laws
It is essential to look at your state’s laws regarding non-economic damages as some states don’t always allow them. Additionally, some states allow non-economic damages only if the defamatory speech included:
● Claiming the plaintiff committed a crime
● Accused the victim of having a communicable or loathsome disease, or
● Related to the victim in their profession or business
Calculating Lost Earnings and Earning Capacity
Determining lost earnings is straightforward. You simply add up the earnings and benefits the victim lost from being out of work.
Lost Earnings Capacity
Calculating lost earning capacity is more challenging as it is speculating about the future. Lost earning capacity typically occurs in two scenarios. The first is when the defamatory statement causes the plaintiff to require taking a lower-paying job for the time being. But in a few years, they will be able to work back to what they were earning pre-defamation. In this case, plaintiffs can recover the difference in the salaries until they would again be making what they were pre-defamation.
The second situation occurs when the plaintiff was self-employed. Damages here include the loss of clients and lost opportunity to gain more clients in the future. Because the damages here are so speculative, an economist is hired to calculate the estimated damages.
Step-By-Step Defamation Lawsuit
Step 1 - Keeping track of legal records
The defamation lawsuit itself will be similar to other personal injury lawsuits. First, you should begin putting together your argument against the person who made the defamatory statement. This includes finding any files and letters that indicate that the five prerequisites of a defamation case were present. Keeping track of these documents in real-time will make it easier in the future to provide this information to your attorney.
Step 2 - Finding a lawyer
The next step in a defamation case is finding a lawyer to advocate for you. When looking for a lawyer, don’t just type into Google “personal injury lawyer.” It’s just too broad. You want expertise specifically within the defamation space. Ideally, it would be great to find a lawyer who has already tried a case similar to your specific situation.
Step 3 - filing The Lawsuit
It’s now time to file the lawsuit. Assuming you have a lawyer representing you, your involvement should be minimal. Once the case is filed, the discovery stage comes next, during which your attorney will receive requests for information from the defendant’s attorney. Many times, your attorney will be contacting you to collect the necessary information to respond. You may be required to attend a deposition to give your version of what occurred and the damages you suffered.
Step 4 - Negotiation, Settlement, and Trial
Once the discovery process is over, the sides will begin negotiating. Remember, your attorney is required to advise you of any offer the defense makes. If you cannot reach an agreement, the sides will move forward to court assisted settlement discussions involving mediations or settlement conferences with the court. If these options fail, then the court will order an arbitration or have a trial.
Finding The Right Lawyer For Your Defamation Case
Defamation cases typically become emotional because it is somebody’s reputation on the line. Therefore, it is crucial to get the best representation possible. It would be wise to hire an attorney who frequently handles defamation cases because they are different than a typical civil lawsuit. Your attorney will be your go-to person for legal questions and often as someone to lean on until the case is over. Attorneys often say they have two jobs, to be their client’s attorney and therapist. Therefore, it is essential to pick an attorney you feel comfortable with and that you can trust.