Should You Sue Family Members for Defamation?

If one is asking whether they should sue family members for defamation, I have to wonder what Thanksgiving dinners are like with these families. I get these calls often, and they are very sad because they show an estranged family. In this article, I will discuss whether it ever makes sense to sue a family member.

Common scenarios.

Family disputes arise from a few common scenarios. The one I see most often arises from disputes over property, when a family member feels cheated. For example, Joe moves in with mom to take care of her, and his brother Bill is not happy with the care Joe is providing. Additionally, Bill becomes convinced that Joe’s new found compassion is really about convincing mom to sign over the house. Bill goes to court to seek a conservatorship, and to bolster that claim, he contacts Adult Protective Services, claiming Joe is abusing dear old Mom. Joe wants to sue for defamation for what Bill put in the court documents, and for what he said to the police.

Another common scenario involves a family member with mental issues and/or a drug problem. The family is showing a little tough love in an effort to get the person back on the path, but he takes it as a personal attack. He wants to sue family members for things they have said to doctors and social workers.

And yet another common scenario, the one we’ll use for today’s discussion, involves a wife who is relatively new to the family. Apparently following the reasoning that “no woman is good enough for my ________” (son, brother, nephew, cousin – fill in the blank), a split has formed, with half the family attacking the new bride, and the other half defending her. She has had enough, and calls me, wanting to sue the family ringleader who is saying bad things about her.

Should she sue?

You can probably guess the answer by the fact that I almost never take this sort of case. Absolutely, if the elements of defamation are met, the bride could successfully sue, but here are some of the reasons I think doing so is a bad idea.

1. What is it going to accomplish?

The frustration of the caller is entirely understandable. Someone in the family is falsely claiming that, say, she has an account on Only Fans and makes her money by getting naked for online customers. She has told everyone that it is not true, and suggested that they ask the family member making the claim for some proof of what he is saying, but nothing is happening to make the situation better. Tragically, callers will sometimes report that even their spouse is treating them differently, based on the false rumor. The bride thinks that by means of a lawsuit, she will be able to force the family member (we’ll call him the Offender) who started the rumor to admit that he has no such evidence.

First, that probably won’t be the case. For whatever reason, the other family members were willing to take the word of the Offender without any proof, over your objections. With his feet to the fire, the Offender will come up with some excuse, such as claiming the bride took down the Only Fans page when she realized she had been discovered. Now the family will hate the bride, not only because she had an Only Fans page, but because she now made the Offender spend money defending against her action.

I just cannot envision a scenario where a rejected family member could successfully sue themselves back into the good graces of the family.

2. Where is the loss of reputation?

Defamation is based on the idea that one’s reputation has value, and defamatory statements diminish that value. But one has to have a reputation before that reputation can be harmed.

I use the example of the cheating spouse. Husband and wife are at a party, and a woman approaches the wife and tells her that she is having an affair with her husband. If false, that is clearly defamatory, but how the wife reacts will determine whether the husband has suffered any loss of reputation.

If the wife laughs at the woman’s claim, because she knows her husband would never cheat on her (especially not with this trollop), then that is proof that the husband has a very good reputation in the eyes of his wife, and that his reputation has not suffered as a result of the lie.

Conversely, if the wife drives home and throws all of her husband’s belongings in the yard, based only on what she heard from a stranger, then that is proof that the husband already had a very bad reputation with his wife. Again, no real loss of reputation.

The point is that if the family members were so willing to believe the story about the bride, then what was her reputation? Deserved or not, true or not, there must have been something about the bride that caused the family not to believe her. She already did not have a good reputation in their eyes, and hence the false Only Fans story really didn’t change much.

3. What are the damages?

To be clear, if you research the elements of a defamation cause of action, “loss of reputation” is not one of them as such. But loss of reputation is the overarching raison d’être of the claim. If the judge or jury conclude that your reputation suffered no loss, they will award only nominal damages.

That said, defamation cases are not always about damages, but there needs to be a cost/benefit analysis. For the reasons stated, the legal action is not going to bring the bride back into the family, so the only two remaining reasons for suing would be “to set the record straight,” or for money.

To recover damages, a defamation plaintiff need not prove actual damages. If the elements of defamation are met, the jurors are instructed that they must award “assumed” damages for the loss of reputation. But they are also told that the damages can be “nominal.” The jury is going to see that the family never liked the bride, and hence she has suffered little if any loss of reputation. The bride could end up with a $1 verdict.

The exception is where the bride has suffered actual damages. I have handled cases where the family vitriol has spread to the livelihood of the defamation victim. Not content to just gossip among themselves, the family members have contacted clients of the victim, or her place of employment, and the victim has lost income as a result.

In such a case, an action might be appropriate. The case is no longer about trying to convince the family members that the claims are lies, but is instead about preventing further damage and/or recovering for the prior damage.

4. Was the speech protected?

Finally, in addition to all of the above considerations, the caller may not even have a case. For a statement to be defamatory, it must be UNprivileged. For various public policy reasons, the law carves out a number of speech categories that are privileged, and cannot form the basis of a defamation action. Privileged speech is beyond the scope of this article, but this article explains privileges in detail. Suffice to say for now, any statements made in a court document are absolutely privileged, and reports to the police are conditionally privileged.

Bottom line.

In any litigation, I insist that the client articulate their goal. That simple assignment often reveals that the client’s goal is unrealistic or impossible.

If you are contemplating suing family members for their false statements, take the time to determine your goal. If it is, “I want them to know that what was said about me is not true,” that is probably not a sufficient goal to justify paying an attorney to sue, at least not from an economic viewpoint. That goal could be achieved in small claims court, at about 1/1000th the cost.