An interesting defamation case out of New York, involving the world of music and illustrating the burden of proof.
As explained here on various occasions, truth is a defense (a point sadly lost on many defense attorneys). Thus, the burden of proof is on the defendant to show the truth of whatever it is he said or published.
In one of our recent cases, the defendant falsely stated that our client had cheated customers. Throughout the case, no matter how many times I explained to defense counsel that it would be his burden to prove that my client cheated customers, he kept responding, “you’ll never be able to prove that your client didn’t cheat customers.”
Really? My client took the stand and testified that he has never cheated a customer. That’s all it takes. The defendant then had the burden to prove the truth of the statement, and could not name a single customer our client had cheated. Judgment for plaintiff.
In today’s case, Tom Scholz, guitarist from the 70’s rock band Boston, sued the Boston Herald newspaper, claiming that certain articles falsely claimed that he was responsible for the suicide of fellow band member Brad Delp in 2007.
The judge in the case dismissed the action, because although it is the burden of the defendant to prove the truth of the statement, the judge concluded that the truth or falsity of the statement could never be determined. He didn’t use this example, but to borrow an example from that era, it’s a little like blaming Yoko Ono for the break-up of the Beatles, when John Lennon isn’t here to testify. The judge ruled that why Delp killed himself will forever be an imponderable, making any statement about the suicide merely an opinion, and opinions are not actionable.