If You Want to Sue for Defamation, Here’s Your Homework

I won’t bury the lead. If you want me to determine whether you have a viable defamation action, here is the information I need. It’s your defamation homework. If you take the time to carefully read this article, it is likely to address any questions you might have about pursuing a defamation action. This is a long article, but it will leave you with a strong understanding of all the factors necessary to analyze your case.

I NEED TO KNOW EXACTLY WHAT WAS SAID, WHEN IT WAS SAID, AND TO WHOM.

When you sue for defamation, you are suing for something that was said or written about you or your company. Therefore, the complaint that is filed with the court must allege EXACTLY what was said or written that you are claiming was false and defamatory.

The most efficient way for me to determine whether you have a viable defamation action is for you to provide that information. If there is only one statement, then that is all you will list, but if there are multiple statements you deem to be false and defamatory, then limit your list to the five most egregious examples. If I read those five and determine that they won’t support a defamation action, then 95 additional statements that are even less egregious probably won’t make a difference. 

Provide any necessary context.

The statements will determine the viability of the action, so I only need context to the extent necessary to understand those statements. For example, if you tell me you want to sue because someone said, “he never graduated from college,” I’d need to know why that is harmful. A statement is not defamatory just because it is false. If you hold a college degree and someone says you don’t, that is not necessarily defamatory because there is nothing wrong with not holding a college degree. But if the context is that you applied for a position requiring a college degree, and someone called the prospective employer and falsely claimed that you lied about your college degree, that would clearly be defamatory.

Explain why the statement is false.

You get the idea. Give me the necessary context to understand why the statement is harmful to your reputation. And as obvious as it may seem, be sure to explain why the statement is false. This often comes up in the context of posted videos. Someone took a video of an interaction between the caller and some third person, and posted it on the internet. They send me the link and say they want to sue for defamation. When I ask how the video is false, they respond, “well there’s nothing false, but it makes me look really bad.” Defamation requires a false statement.

Don’t go back more than a year.

Next, the statute of limitations for defamation is just one year, so I need to know when the statement was made.

For statements posted on the internet, the one year statute of limitations (SOL) runs from the date of first publication. It does not matter if the false information is still up on the internet; the SOL runs from the date it was first published. In some cases not involving the internet, the SOL will run from the date when you first discovered the statement had been made.

Who will testify to the defamatory statements?

I also need to know who will voluntarily testify to the defamatory statements. If the statements are contained in a writing, that makes it pretty easy, so long as we have someone who can testify to receiving the writing. If the statements were verbal, then we need a witness who will voluntarily testify to the statements. If you want to understand why the witness must be voluntary, read this article. Sometimes there won’t be any evidence beyond your own testimony, but I need to know what is available.

PUT IT ALL TOGETHER.

So the summary you provide to me should be a numbered list, that looks something like this:

1. On April 4, 2022, during a lunch meeting held at B.J.’s restaurant in Irvine, Joe Dokes said: “David is embezzling money from the company by taking dates to costly restaurants, and claiming they discussed business in order to charge it to the company.”

I work at Acme Distributing as an account manager, and Joe Dokes is another account manager who is hoping to take over my territories. The statement was false because I have never taken a date to a restaurant and billed it to the company. This can be proven by a simple accounting of my expense reports. I have only twice taken potential clients to restaurants, and both subsequently did business with the company. I can provide the names of both, and both will confirm they were not dates. I can testify to the statement made at the meeting, and my assistant, William Daniels, has confirmed that he will testify to the statement.

2. In an email dated April 6, 2022, which was sent to five customers of the business, and copied to the owner of the company, Joe Dokes wrote: “It has come to our attention that one of our account managers, David Crosby, has been offering to arrange prostitutes for customers in order to secure contracts. If you have received such an offer, please contact me immediately.”

The statement is false because I never made such an offer. This can be proven by the fact that Dokes will not be able to identify any customer who has received such an offer from me. I can provide a copy of the email, which was forwarded to me from one of the recipients, Neil Young, who is the President of Land O’ Lakes. I have spoken to Mr. Young, and he will attest to receiving the email.

It’s that simple. Just provide a similar summary as to EACH STATEMENT you are claiming harmed your reputation. Many will send me a summary of what occurred, followed by the evidence, but that doesn’t work because it still requires me to try to determine what evidence and which witnesses go to which statements.

I need the actual quotes.

For some reason, this is the most challenging part of the homework assignment for some callers. They write back with, “I was accused of rape.” We are required to set forth the EXACT statement made, not a summary. Let me say it again with emphasis. I NEED THE EXACT QUOTE. That means beginning the statement with a quotation mark, setting forth the statement, ending with punctuation of some sort, and concluding with the closing quotation mark.

It may well be that you don’t yet know the exact quote, but that likely means that we don’t yet have a viable action.

People love to gossip, so perhaps a coworker, Dave, said to you, “Watch out for Jane. She’s telling everyone that you discriminate against women.” But that bit of information is not enough. We need to know exactly what Jane said to Dave. Dave may have misinterpreted the statement, or may not have spoken to Jane at all, and is just relying on office gossip. Perhaps the full quote was:

“That frickin’ Joe. I pulled into the parking lot this morning and he snaked the spot I was about to pull into. He would not have done that if I were a man. He totally discriminates against women.”

That statement would not be defamatory for the reasons set forth in this other article. If all you heard was the gossip, you need to go back to your coworker for the exact quote.

If the defamatory statements are contained in a video (many of our cases arise from YouTube videos), then you will need to listen to the video enough times to extract the exact quote for the summary. While doing so, note the timestamp of the statement in case I need to listen to it.

Please do not send links or screenshots. 

Potential clients will sometimes send a link to or screenshot of, say, a Yelp review they claim is defamatory, with a note saying, “everything they said is false.” Then we have a conversation that goes something like this:

“The review says that it is about a hair salon called Hairport in San Clemente. Is that your salon, and is it true that it is located in San Clemente?”

“Yes that’s true.”

“And it says that she came in for a Brazilian Blowout on March 3, 2023. Is that true?”

“Oh yes, we remember her well. She acted crazy.”

“And it says that you told her the charge would be $95. Is that true?”

“Yes. That is our standard fee for a Brazilian Blowout.”

“And it says that she complained about the cost being so high. Is that true?”

“Absolutely. She was screaming about the price.”

“You said that everything in the review was false, but so far everything has been true. Can you point me to the false part?”

“She said that we never offered her a beverage. That’s not true. We offer every customer a beverage.”

You get the point. It is seldom the case that every statement is false, and it won’t help with the analysis if I am left to guess which are the offending statements. The links and screenshots will become important as evidence if we pursue the case, but at this juncture, I need you to pull out the offending statements and put them in the summary.

Why are you making me work so hard?

Sometimes a caller will ask why I am assigning this task to them, instead of making it part of my legal representation. There are multiple reasons.

First, I can’t put the cart before the horse. I am ethically required to conduct due diligence to determine whether the client has a viable action. Getting a call from an attorney is only slightly less terrifying than getting a call from the IRS. I am not going to ruin people’s days just to see if there is a viable action. I can’t start making calls until I have confirmed the caller has a case.

Second, the screening process goes two ways. The client is deciding if they want me as their attorney, and I am deciding if I want to represent the client. Litigation requires a great deal of time from both the client and the attorney. The client will need to gather paperwork, respond to discovery responses (with my assistance), sit through depositions, etc. If they are unwilling to devote the time necessary to perform this initial homework assignment, then they probably won’t be willing to put in the necessary time as the litigation progresses.

And finally, why pay me to gather this initial information? Finding out if William Daniels is willing to testify to what was said will take you seconds, whereas giving me his contact information so that I can play telephone tag until I reach him is far less efficient. Plus, people are always leery when they receive a call from an attorney. He’ll probably just tell me that he needs to check with you before speaking to me.

THE LAW REGARDING DEFAMATION.

The information provided above should be sufficient for you to prepare the necessary summary. But for extra credit on your homework, perhaps even a gold star, you might want to read further, to better understand the elements of defamation.

Here are the elements of defamation:

The elements are “(a) a publication [to a third party] that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.

We’ll quickly examine each element.

(a) Publication

The use of the word “publication” is confusing to some. An example would be a caller who wants to sue a neighbor, because the neighbor came to their front door and falsely accused them of some criminal act.

“You can’t be defamed to yourself,” I say, “the statement must be published to a third person.”

“Do you mean ‘published’ like in a newspaper? No, they just said it to me.”

Published just means put out into the world, either verbally or in writing. Defamation is actionable because we recognize that one’s reputation has value, and that one should be able to recover for loss of reputation. But it would not make sense to allow you to recover for loss of reputation for something said only to you. If someone lies about you only to you, there is no loss of reputation.

(b) False

The statement must of course be false, but that simple element is often more complicated than you might think. The statement must be offered as a true statement, and sometimes the nature of the statement makes clear it is not being offered as such.

Someone once called, wanting to sue for defamation, because a cashier had referred to him as “crazy” in front of other people. He tried to pay with a Discover card, and when the cashier refused that payment method, he said he had paid with his Discover card just days earlier. She responded, “You’re crazy; we have never taken Discover.”

The statement was not meant to state that the customer had a mental disorder. It was just a colloquial way of saying, “you don’t know what you’re talking about.”

In this same vein, for a statement to be false, it must be subject to a precise definition. If someone is called a “skank,” that is not defamatory, because there is no evidence that can be presented to determine whether the person is or is not a skank, since there is no precise definition of that pejorative.

That example is pretty obvious, but what if someone calls you a “stalker”? I get this one a lot for some reason. A guy, we’ll call him Joe, is on a dating site, and after texting a woman a couple of times, she publishes a comment stating that Joe is a stalker. Joe looked up the criminal code section that defines stalker, and since he does not qualify under that definition, he wants to sue for defamation. It doesn’t work that way. The woman did not say, “Joe is a stalker as that term is defined by the Penal Code.” If she had, then Joe might have a case. But she only said that Joe is a stalker. She is using the term as an undefined pejorative. In her mind, a guy who sends a second message before receiving a response to a prior message, is a stalker. Hyperbolic language is typically not defamatory, because it is recognized as such.

Let’s use a more challenging example. What if someone calls you “racist”? Assuming you are not racist, can you sue? The answer is almost always no, for the same reasons. Even though you are absolutely not racist, as explained in much more detail in this other article, there is no evidence that can be presented to prove that fact. Here is the simplistic example I used in the other article to illustrate the point:

Some callers will offer all the ways they can prove that they are not a racist, including a spouse and children who belong to the race in question, years of fighting for the rights of that race, a Nobel Peace Prize for the work they have performed fighting for equal rights, and thousands of friends belonging to the race. (I obviously exaggerate to make the point.)

None of that defeats a claim of racism, at least as to the person making the claim. If that person claims the Barista at the Starbucks is a racist because they misspelled their name on the cup, who is to say that is not true?

“But I just misheard your name.”

“Then you’re a racist for not asking me to repeat it or asking for the proper spelling.”

“But the point is just so the person knows which cup is theirs; it’s not about the spelling.”

“So you don’t care how minorities spell their names? Racist.”

The common theme here is that the words all come down to opinion. Whether someone is a skank, a stalker, or a racist is a matter of opinion. There can be exceptions, such as where the predicate is false. If the person claiming the Barista is racist for misspelling his name, but in reality has never been to that Starbucks, that is a different situation. In that case, the claim of racism would not be an opinion, because the person had no basis to form that opinion. But that aside, examine the statement made to determine whether it can be proven to be a verifiably false statement.

(c) Defamatory

Every time I provide the elements of defamation, I recall one of my elementary school teachers, saying that you can’t use the word you are defining to define the word. Stating that defamation is something that is defamatory seems circular to me, but that is how the law defines it.

The point of the element is simply to require that the statement is such that it causes harm to reputation. This is defined by Civil Code § 45 which provides that defamation (libel) is a statement “which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

If I say you drive a red car, while in fact you drive a blue car, I have told a lie about you, but it is not defamatory because you would not be hated or shunned because you were falsely accused of driving a red car.

(d) Unprivileged

Here is the biggie that trips up most callers. For various policy reasons, certain statements are privileged, and cannot be the basis for a defamation action. Those privileges are set forth in Civil Code § 47, which you can find in its entirety at this link, but to summarize, you can’t sue for:

1. Anything said at a legislative or judicial proceeding, or at any other official proceeding authorized by law; or

2. Anything said in a court document or said in relation to a court proceeding; or

3. Anything said by a prior employer, to a prospective employer, so long as the statement was not made with malice.

Callers often want to sue for lies told in court or contained in court documents. The Litigation Privilege is absolute. You can’t sue for statements related to litigation.

(e) Has a natural tendency to injure or that causes special damage.

This is related to element (c). The statement is not defamatory just because it is false. It has to have a “natural tendency to injure, or cause special damage,” such as loss of income.

LET’S TALK A LITTLE ABOUT DAMAGES.

Damages must be proven. That concept is so important I’ll say it again. Damages must be proven.

I get calls or emails from potential clients saying, “I want to sue for $50,000,000!!” The emotion is entirely understandable. Someone said something horrible about them, and in their mind even $50 million is insufficient compensation to make up for the humiliation and loss of reputation. But when I ask them to walk me through their damage calculation, all they can offer is that it hurt their feelings and caused them emotional distress. Emotional distress damages are recoverable, but it is unlikely they would support that measure of damages.

I see this 50 million dollar figure popping up a lot as of late, because that is the amount sought by Johnny Depp in his case against Amber Heard. But Johnny Depp was making $50 million per movie, and lost future opportunities as a result of Heard’s defamation. Most of us are not in a similar situation. And it is equally important to note that the final judgment was for $10 million, and since there was little chance Heard could ever pay that amount, Depp settled for $1 million.

If defamation is proven, the plaintiff can recover general damages for  emotional distress, shame, depression, and special damages for loss of income, loss of business opportunities, and out-of-pocket expenses for therapy, moving expenses, etc.

General damages are akin to pain and suffering damages in a personal injury case. In that regard, the jurors simply award what they think is appropriate given your emotional distress. But while the actual number need not be proven, the existence of the damages must be shown. In other words, just saying the defamatory statement made you feel bad may not result in damages. You need to show the jury the manifestation of that emotional distress, such as time spent in therapy, loss of consortium, etc.

As to special damages, the law requires that special damages be alleged with specificity. A business can’t, for example, simply allege that because of the defamation they have lost business. Or an individual can’t just allege that because of the defamation, they are unlikely to find employment. To properly allege special damages, the allegation should be something like: “On August 11, 2022, Plaintiff was extended an employment offer by Microsoft as a programmer, with an annual salary of $250,000. On August 15, 2022, Microsoft withdrew that offer, citing the statements by Defendant as the reason.”

Assumed and actual damages.

Defamation law breaks down the damages into two additional categories — assumed and actual damages. Defamation is unique among torts in that if all the above elements are proven by the Plaintiff, actual damages need not be shown. The law recognizes that one’s reputation has value, and the jurors are instructed that they MUST award damages if defamation is proven. These are the “assumed” damages.

As stated above, the calculation is akin to damages for pain and suffering in a personal injury action. In both cases, the jury arrives at a figure calculated to compensate the victim for the injury suffered, even though there is no precise means to quantify that number.

But don’t take this too far. That same jury instruction states that “damages can be nominal.” If the defamatory statements were outrageous, and it is clear that the Plaintiff suffered extreme loss of reputation, the jury will likely award assumed damages that reflect those realities. But if the defamation was slight, and the audience was limited, the damages may be very small.

Many years ago I defended a crotchety defendant who, in a “get off my lawn” tirade, had accused a neighbor of criminal conduct in the presence of others. The target of his tirade decided to make a federal case out of it, and sued for defamation, spending probably tens of thousands of dollars in attorney fees to take the case all the way to trial. I agreed to represent the defendant only because it was outrageous that the plaintiff was seeking a fortune in damages for a remark that was clearly just spoken out of anger, and was not offered as a true statement.

All the elements of defamation were there — my client had said what he had said — but I convinced the jury to award the plaintiff just $1. It was clear that no one present had believed what my client had said, specifically because he was well known as the crotchety neighbor. So how had plaintiff suffered any loss of reputation? Technically plaintiff won the case, but attorney fees are not recoverable in a defamation action, so it was a huge loss from a money standpoint.

The “Defamed in Front of a Crowd” scenario.

The prior war story presents a common scenario, where a crowd hears a defamatory statement. The caller was leaving a store with family and friends, and was stopped by loss prevention, who accused the caller of shoplifting. Or perhaps the caller was at an amusement park, and right there if front of God and country, was accused by security of some criminal act. He calls my firm, wanting to sue for defamation for the false accusation.

Let’s apply what you now know about defamation to this scenario.

The accusation was published to third parties (the bystanders), and it involved a false claim of criminal conduct, so the elements of defamation have been met. But what damages did the caller suffer?

Your family and friends know the accusation is false, so no loss of reputation there. As to the strangers, they don’t know you and don’t know why you are being accused. What they heard likely went in one ear and out the other. True, some people love to assume the worst, so they may indeed walk away thinking you did whatever you were accused of, but so what? Did the accusation cost you your job? Will you now be shunned at social events? And chances are, you did not immediately write down the names and contact information for all the strangers, so you won’t be able to call them as witnesses to see how they reacted.

Again, this is not to say you don’t have an action. Perhaps you can convince the judge that the pure embarrassment of being falsely accused in front of people led to sleepless nights and caused you severe angina. But you would spend more on an attorney than you are likely to recover. You might be better served by prosecuting the action in Small Claims Court.

The analysis of such a scenario is often muddied by the fact that in addition to falsely accusing the caller of some criminal act, the store or amusement park also forever banned the caller from returning. In the caller’s mind, that adds insult to injury.

But generally speaking, a business owes you no duty of investigation. Just as you can exclude anyone you want from your living room, a store or park can exclude you. To this most will respond that the real reason for the false accusation and exclusion was discriminatory, and if you have evidence to prove discrimination, then sue them until they glow. But in most instances, the caller can explain only that they happen to belong to a protected group, but can offer no specific evidence that the conduct was based on that status.

Your duty to mitigate.

In any legal action, the plaintiff has a duty to mitigate his or her damages. If the plaintiff fails to do so, the jury can deny any damages, or at least reduce them to the amount the plaintiff would have suffered if he had taken steps to mitigate the damages. Here is the actual jury instruction on mitigation:

If you decide [name of defendant] is responsible for the original harm, [name of plaintiff] is not entitled to recover damages for harm that [name of defendant] proves [name of plaintiff] could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of [name of plaintiff]’s efforts in light of the circumstances facing [him/her at the time, including [his/her] ability to make the efforts or expenditures without undue risk or hardship.

I recently received a call from someone who had lost her job as a result of a lie told to her employer. In her initial email, she explained that the damages were substantial, because she intended to sue for ten years of lost wages. She had been earning $20 per hour and working 40 hours per week, plus some overtime, so by her calculation ten years of lost wages would amount to about half a million dollars.

It doesn’t work that way. Under the duty to mitigate, she is required to make “every reasonable effort” to find comparable employment. Her damage calculation assumes she won’t work again for ten years, and there is no logical basis for that assumption.

Here is how future damages play out in court. In the above circumstance, the defendant would retain an economics and employment expert, who would testify that a $20 per hour job is easily replaced (even McDonalds is paying $17 per hour now), and that it should not have taken the plaintiff more than three weeks to find a new job that pays $20 per hour. This would reduce plaintiff’s loss of wages to $2,400, with zero future loss of income, or perhaps with some future loss calculated on the the time it will take to get back into the same position in term of possible promotions.

Act natural.

And this duty to mitigate is not limited to finding work. In a defamation action, it requires the plaintiff to take any reasonable steps to mitigate the loss of reputation. A surprising number of callers inform me that they have not taken any steps to counter the defamatory statements. They were, for example, defamed in a small Facebook group, but do not reply to the comment, thinking their defamation claim will be stronger if they say nothing.

Read that jury instruction again. The jury can deny or reduce any award of damages if it determines that the plaintiff did not act reasonably in mitigating his damages. A jury is not going to award damages to a plaintiff who let the lie fester and cause loss of reputation, when he could have simply explained why the comment was false. In fact, as explained in this other article, if you are defamed by a daily or weekly news publication, you will be denied most types of damages if you fail to demand a retraction within 20 days.

What about punitive damages?

After I explain to a potential client that their case is not economically viable because the cost of prosecution would far exceed what they are likely to recover, they will sometimes ask, “But what about punitive damages?”

Punitive damages are indeed recoverable in a defamation action. Such damages are designed to punish defendants for their bad conduct, to deter them and others from engaging in such activity in the future.

But punitive damages are not unmoored from reality. The law requires them to be proportionate to the damages suffered. There is no hard and fast measure of what punitive damages can be in proportion to the compensatory damages, but one naturally dictates the other.

Take the $1 jury verdict discussed above as an example. The jurors did not see any loss of reputation, and thus awarded just $1. Those same jurors are not then going to turn around and award significant punitive damages in order to discourage that behavior in the future. They just did not see the behavior as a big deal.

Conversely, if the jurors were offended enough that they awarded $500,000 in compensatory damages, that does not mean that punitive damages will follow. Punitive damages are judged by a different standard. The jury must find by “clear and convincing” evidence that the defendant acted with “malice, oppression, or fraud.”

If the defendant tells a lie about the plaintiff based on some mistaken understanding of the facts, that would not support punitive damages. The defendant was just wrong, not malicious (although malice can sometimes be shown by a defendant’s flagrant failure to check the facts).

My own policy (other attorneys may differ) is that I don’t consider the potential punitive damages when determining the viability of a case. If the actual and assumed damages are insufficient to warrant moving forward, then punitive damages likely won’t be significant, if awarded at all.

But what about my reputation?

I fully recognize that defamation actions are not always about the money. Some plaintiffs are fully prepared to spend more than they will recover, just to have an official court decree stating that the statements made by defendant were false and defamatory. That is a perfectly laudable goal, but you still need to know the cost of achieving that goal so you can make an informed decision.

Depending on the circumstances, the value of “bragging rights” can be immeasurable. I once represented a hospital doctor, who was defamed online by an anonymous poster. Through discovery, we uncovered the identity of the defendant, who turned out to be another doctor at the hospital. She had posted the defamatory statements about our client, in the hope that he would be fired and she could take his job.

The litigation was far more expensive than normal, because the defendant paid her attorneys to bring every conceivable motion. The eventual judgment was equal to the amount spent on litigation, but our client was thrilled by the outcome. He restored his reputation, and was then free to tell the world about what the defendant had done. The defendant’s career prospects took a serious hit.

The economic realities apply to the attorney as well.

After explaining that the case would likely not make economic sense for the prospective client to pursue, they will sometimes respond with, “But can’t you handle the case on a contingency basis?” Sometimes they will even add, “I don’t care about the money — you can keep all of it — I just want to show them they can’t get away with telling lies about me.”

The economic realities are the same for the attorney as they are for the client.

Let’s say the attorney charges $450 per hour for his or her time. The attorney calculates that it will take 100 hours to take the case all the way to trial (a very conservative estimate), meaning that the client would pay $45,000 in attorney fees. The attorney decides that is more than the client is likely to recover in damages, so advises against pursuing the action. The client then asks if the attorney can take it on a contingency basis, getting paid from the damages. But if it did not make sense for the client to proceed, the same is true for the attorney. Each hour spent on the case is an hour the attorney is not getting paid on another matter. The attorney would be the one spending $45,000 on the case (in lost income), after he has already concluded the case will not generate that much in damages. That would not make economic sense.

Do attorneys handle defamation cases on a contingency basis?

Some callers assume that a defamation action is like a personal injury action. Instead of a car accident, they were injured by the false words said by the defendant. And on that basis, they assume the attorney will handle the case on a contingency basis, taking a percentage of whatever is recovered.

It’s not an unreasonable assumption, but defamation cases are very different than personal injury cases. First, in an auto accident, there is usually insurance to cover the damages, so the attorney will get paid if they win. There is almost never insurance coverage for a defamation action. The ability to collect will turn on the finances of the defendant.

But more problematic, from a contingency standpoint, many defamation actions settle for little or no money. The plaintiff just wants to restore their reputation, and might be willing to settle for an agreement whereby the defendant agrees to provide a letter of apology and to take down all the defamatory statements. The lawyer can’t pay the bills with 40% of a letter of apology.

Personally, I judge each case on its own merits, but generally I will not prosecute an action on a contingency arrangement if the damages are only assumed damages, as explained above.