Personal Injury Law

Defamation - What do I need to prove?

By Steve Lombardi

What can you do if a former employer gets the word out that you stole from them and makes remarks about your personal life, all which are untrue. What are the main elements of a defamation actiion?

What can you do if a former employer gets the word out that you stole from them and makes remarks about your personal life, all which are untrue.

Let me take this answer about defamation one step further. First, no one has the right to say untruths about you and to make those statements public. There is little latitude if those untruths cause injury to your reputation for honesty. Statements that would reasonably be understood to be an expression which would attack a person's integrity or moral character, or expose the person to public hatred, contempt or ridicule, or deprive the person of the benefits of public confidence and social dealings or that causes injury to the person's business. These are what the law refers to as Libel Per Se. Here are the main elements that your lawyer will need to prove in court. See if you can prove each and every element while identifying witnesses, recordings, documents or other published information that proves the point of each. Proving defamation is all about the proof.

Let me take this answer about defamation one step further. First, no one has the right to say untruths about you and to make those statements public. There is little latitude if those untruths cause injury to your reputation for honesty. Statements that would reasonably be understood to be an expression which would attack a person's integrity or moral character, or expose the person to public hatred, contempt or ridicule, or deprive the person of the benefits of public confidence and social dealings or that causes injury to the person's business. These are what the law refers to as Libel Per Se. Here are the main elements that your lawyer will need to prove in court. See if you can prove each and every element while identifying witnesses, recordings, documents or other published information that proves the point of each. Proving defamation is all about the proof.

1. Identify what statement was untrue and how it was untrue.
2. Was it published? If the untruth is published then to how many people was it published? Saying an untruth about someone to three people at a cocktail party after six drinks if different than saying it to a newspaper reporter who publishes it in the daily paper to 100,000 readers.
3. What about the quality of the untruth? Were the words that are used or the substance of the untruth of the nature that it leaves no room for argument about what is intended?
4. How was the statement characterized? Was it characterized as "This is just my opinion." Or as, "This is a fact that I have personal knowledge."? Everyone has an opinion and opinions leave room for disagreement over whether or not the ultimate conclusion is true or just the person's opinion. If someone says that Lawyer Lombardi in my opinion is no good. Okay, so what? No good at what? There are quite a few things that I'm not very good at doing. If you have to ask a follow up questions about what is meant then it's probably not going to be considered an absolute fact. If it's an opinion then the law asks, "So what that the proponent of the statement has that opinion about me?" Perhaps the proponent is jealous and everyone in the room knows that about him. But if they say, "Lombardi is a crook who steals money from his client trust account and I've got proof of it." Those words have a different message and a very strong message about my character for honesty.
5. How many people heard or have been made aware of the untrue statement? That can make a difference as to how much the injured party has been damaged.
6. And what about proximate cause? If you were to say an untruth about a convicted serial killer, how much can you possibly damage their reputation? You have to prove damage to your reputation.
7. There are instances where the slandered person holds public office or the proponent of the statement holds a qualified privilege and then the jury must decide if malice is involved. We won't get into that but you have to ask a lot of questions before knowing if there is a case for defamation.
8. Truth is always a defense.

Defamation cases are highly dependent on the testimony of witnesses who can support every element of the tort to be proved.

Full post as published by Des Moines Personal Injury Lawyer on April 24, 2008 (boomark / email).