Difference between revisions of "File a Slander Lawsuit"
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| − | Slander falls under the legal category of personal injury within civil, or tort, law. Slander is a subcategory of defamation, which happens when someone attacks your good character by communicating untrue statements.<ref>https://www.osbar.org/public/legalinfo/1186_LibelSlander.htm</ref> For example, actress Sharon Stone recently won a slander suit against a doctor who had falsely stated that he had performed a facelift surgery on her.<ref>http://www.insidecounsel.com/2014/11/18/6-most-successful-celebrity-libel-and-slander-case?page=5</ref> You should know that slander lawsuits are incredibly difficult to win. You typically have to prove that a statement was both false ''and'' caused actual damages. Multiple defenses can work to get a slander lawsuit dismissed or defeated. However, you must know how to file a slander lawsuit to defend yourself against potential slanderous statements. | + | Slander falls under the legal category of personal injury within civil, or tort, law. Slander is a subcategory of defamation, which happens when someone attacks your good character by communicating untrue statements.<ref name="rf1">https://www.osbar.org/public/legalinfo/1186_LibelSlander.htm</ref> For example, actress Sharon Stone recently won a slander suit against a doctor who had falsely stated that he had performed a facelift surgery on her.<ref name="rf2">http://www.insidecounsel.com/2014/11/18/6-most-successful-celebrity-libel-and-slander-case?page=5</ref> You should know that slander lawsuits are incredibly difficult to win. You typically have to prove that a statement was both false ''and'' caused actual damages. Multiple defenses can work to get a slander lawsuit dismissed or defeated. However, you must know how to file a slander lawsuit to defend yourself against potential slanderous statements. |
[[Category:Civil Litigation]] | [[Category:Civil Litigation]] | ||
== Steps == | == Steps == | ||
===Determining Whether Slander Occurred=== | ===Determining Whether Slander Occurred=== | ||
| − | #Understand the definition of slander. Slander is a type of defamation. Defamation is the communication of a false statement that harms a person’s reputation, decreases respect for that person in the community, or induces people to have negative feelings against that person. Defamation encompasses both spoken and written statements. Most states incorporate both slander and libel into "defamation" suits, so you will probably be filing your suit under the tort of defamation.<ref>http://dictionary.law.com/Default.aspx?selected=458</ref><ref>http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html</ref> | + | #Understand the definition of slander. Slander is a type of defamation. Defamation is the communication of a false statement that harms a person’s reputation, decreases respect for that person in the community, or induces people to have negative feelings against that person. Defamation encompasses both spoken and written statements. Most states incorporate both slander and libel into "defamation" suits, so you will probably be filing your suit under the tort of defamation.<ref name="rf3">http://dictionary.law.com/Default.aspx?selected=458</ref><ref name="rf4">http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html</ref> |
| − | #*Libel is defamatory information that can be seen. This could include the publication of photographs or written material. Statues, movies, effigies, and other visual media may also be libelous.<ref>http://dictionary.law.com/Default.aspx?selected=1153</ref><ref>http://dictionary.law.com/Default.aspx?selected=1154</ref> | + | #*Libel is defamatory information that can be seen. This could include the publication of photographs or written material. Statues, movies, effigies, and other visual media may also be libelous.<ref name="rf5">http://dictionary.law.com/Default.aspx?selected=1153</ref><ref name="rf6">http://dictionary.law.com/Default.aspx?selected=1154</ref> |
| − | #* Slander is defamatory information that is spoken and heard. This could include untrue accusations and false statements spoken to someone else.<ref>http://dictionary.law.com/Default.aspx?selected=1969</ref> | + | #* Slander is defamatory information that is spoken and heard. This could include untrue accusations and false statements spoken to someone else.<ref name="rf7">http://dictionary.law.com/Default.aspx?selected=1969</ref> |
| − | #* Defamation spoken over broadcast media, such as TV and radio, is generally treated as libel because broadcasting reaches a much larger audience and thus has a larger impact.<ref | + | #* Defamation spoken over broadcast media, such as TV and radio, is generally treated as libel because broadcasting reaches a much larger audience and thus has a larger impact.<ref name="rf7" /> |
| − | # Determine whether the statement was false. No matter how awful or mean, a true statement cannot be slanderous. You must be able to prove that the statement is false. Slanderous statements are statements of fact that can be proven or disproven, not statements of opinion.<ref>http://www.nolo.com/legal-encyclopedia/defamation-libel-slander-key-elements-claim.html</ref> | + | # Determine whether the statement was false. No matter how awful or mean, a true statement cannot be slanderous. You must be able to prove that the statement is false. Slanderous statements are statements of fact that can be proven or disproven, not statements of opinion.<ref name="rf8">http://www.nolo.com/legal-encyclopedia/defamation-libel-slander-key-elements-claim.html</ref> |
#* For example, if someone says “That restaurant is the worst restaurant in the history of this town,” that statement will not be slander, because there is no way to prove that the statement is false. The statement is an opinion, and is not objectively based on facts. | #* For example, if someone says “That restaurant is the worst restaurant in the history of this town,” that statement will not be slander, because there is no way to prove that the statement is false. The statement is an opinion, and is not objectively based on facts. | ||
#* However, if someone says “I found three roaches in my pasta at that restaurant,” that statement could be slanderous if it was untrue. This statement makes a claim of ''fact,'' unlike the previous statement. You could determine through investigation whether there were actually roaches in the pasta. For example, you could take statements from others eating with that person, as well as from the chefs who prepared the pasta. | #* However, if someone says “I found three roaches in my pasta at that restaurant,” that statement could be slanderous if it was untrue. This statement makes a claim of ''fact,'' unlike the previous statement. You could determine through investigation whether there were actually roaches in the pasta. For example, you could take statements from others eating with that person, as well as from the chefs who prepared the pasta. | ||
#* It is a good idea to include evidence of falsity in your initial complaint. This will make it more difficult for the speaker to bring up the truth of her statement as a defense. | #* It is a good idea to include evidence of falsity in your initial complaint. This will make it more difficult for the speaker to bring up the truth of her statement as a defense. | ||
| − | # Determine whether the statement was an opinion. In the United States and many other countries, people have an absolute right to state ''opinions'' as long as they are clearly stated as such. This also applies to clear rhetorical ploys, such as obviously false or hyperbolic statements.<ref | + | # Determine whether the statement was an opinion. In the United States and many other countries, people have an absolute right to state ''opinions'' as long as they are clearly stated as such. This also applies to clear rhetorical ploys, such as obviously false or hyperbolic statements.<ref name="rf8" /> |
#* For example, “I think Jack is a woman-hating jerk” is an opinion, not a statement of fact. It cannot be considered slanderous. | #* For example, “I think Jack is a woman-hating jerk” is an opinion, not a statement of fact. It cannot be considered slanderous. | ||
| − | #* However, the statement “I think Jack abuses his girlfriend” implies a more serious allegation. Even though the words ''I think'' are still present, the seriousness and specificity of the allegations might give grounds for a slander suit if the statement is proven false.<ref>http://www.dmlp.org/book/export/html/1813</ref> | + | #* However, the statement “I think Jack abuses his girlfriend” implies a more serious allegation. Even though the words ''I think'' are still present, the seriousness and specificity of the allegations might give grounds for a slander suit if the statement is proven false.<ref name="rf9">http://www.dmlp.org/book/export/html/1813</ref> |
| − | #* As an example of rhetorical ploys, someone stating that a political figure is a “terrorist” for raising taxes will not likely make the speaker liable for slander. It is obvious that the speaker did not ''literally'' mean that the politician was a terrorist, and it is reasonable to presume that anyone who heard the statement would understand that.<ref | + | #* As an example of rhetorical ploys, someone stating that a political figure is a “terrorist” for raising taxes will not likely make the speaker liable for slander. It is obvious that the speaker did not ''literally'' mean that the politician was a terrorist, and it is reasonable to presume that anyone who heard the statement would understand that.<ref name="rf9" /><ref name="rf10">https://www.techdirt.com/articles/20121214/23204121393/its-not-defamation-to-call-someone-terrorist-online-accusing-them-putting-severed-horse-head-pool-however.shtml</ref> |
# Determine if the statement was published. To prove that you have been defamed by a slanderous statement, you must prove that the statement was “published.” This means that a third party other than you and the person who spoke the statement must have heard the statement. | # Determine if the statement was published. To prove that you have been defamed by a slanderous statement, you must prove that the statement was “published.” This means that a third party other than you and the person who spoke the statement must have heard the statement. | ||
#* A statement does not have to be published in a book or magazine to meet this requirement. A statement that is spoken on television or a radio show, or is said in a speech or even in loud conversation, will qualify as published because someone else heard it. | #* A statement does not have to be published in a book or magazine to meet this requirement. A statement that is spoken on television or a radio show, or is said in a speech or even in loud conversation, will qualify as published because someone else heard it. | ||
| − | # Determine whether the statement injured you in some way. Laws against defamation are intended to protect people from the effects of false statements. In order to win a slander lawsuit, you must show that you were injured by the false statements.<ref>http://injury.findlaw.com/torts-and-personal-injuries/elements-of-libel-and-slander.html</ref> | + | # Determine whether the statement injured you in some way. Laws against defamation are intended to protect people from the effects of false statements. In order to win a slander lawsuit, you must show that you were injured by the false statements.<ref name="rf11">http://injury.findlaw.com/torts-and-personal-injuries/elements-of-libel-and-slander.html</ref> |
| − | #* Courts do not usually presume damages from slander as they do with libel. The suing party (you, in this case) must prove that actual, quantifiable damages occurred.<ref>https://www.law.cornell.edu/wex/slander</ref> | + | #* Courts do not usually presume damages from slander as they do with libel. The suing party (you, in this case) must prove that actual, quantifiable damages occurred.<ref name="rf12">https://www.law.cornell.edu/wex/slander</ref> |
| − | #* To show that your reputation was injured by the false statement, you must have evidence. For example, you could show that you lost your job or were treated badly at work because of the untrue statement. Or you could demonstrate that your friends and family would no longer associate with you after hearing the statement, or that you were harassed by the press. To prove mental anguish, you would likely want to have the testimony of a physician or mental health professional.<ref | + | #* To show that your reputation was injured by the false statement, you must have evidence. For example, you could show that you lost your job or were treated badly at work because of the untrue statement. Or you could demonstrate that your friends and family would no longer associate with you after hearing the statement, or that you were harassed by the press. To prove mental anguish, you would likely want to have the testimony of a physician or mental health professional.<ref name="rf7" /><ref name="rf13">http://www.alllaw.com/articles/nolo/personal-injury/defamation-character-lawsuit-proving-harm.html</ref> |
| − | #* However, if you already have a bad reputation, it can be difficult for you to prove that the statement you're alleging as slander caused you any meaningful damages. Asserting that you already had a bad reputation is a common defense in slander lawsuits.<ref | + | #* However, if you already have a bad reputation, it can be difficult for you to prove that the statement you're alleging as slander caused you any meaningful damages. Asserting that you already had a bad reputation is a common defense in slander lawsuits.<ref name="rf13" /> |
#* A statement that embarrasses you is also not likely to be found as slanderous. To count as slander, a statement must cause you serious, actual damages. Embarrassment does not usually do this.<reF>http://www.alllaw.com/articles/nolo/personal-injury/defamation-character-lawsuit-proving-harm.html</ref> | #* A statement that embarrasses you is also not likely to be found as slanderous. To count as slander, a statement must cause you serious, actual damages. Embarrassment does not usually do this.<reF>http://www.alllaw.com/articles/nolo/personal-injury/defamation-character-lawsuit-proving-harm.html</ref> | ||
#* Some states consider certain allegations of slander ''per se,'' or inherently slanderous. For example, accusations that you committed a crime, had an infectious or loathsome disease, or are unable to perform your job are generally treated as slander per se because they show a clear intent to cause harm. In these cases (in states that allow per se consideration) you do not have to prove injury to make a valid claim.<Ref>http://dictionary.law.com/Default.aspx?selected=1969</ref> | #* Some states consider certain allegations of slander ''per se,'' or inherently slanderous. For example, accusations that you committed a crime, had an infectious or loathsome disease, or are unable to perform your job are generally treated as slander per se because they show a clear intent to cause harm. In these cases (in states that allow per se consideration) you do not have to prove injury to make a valid claim.<Ref>http://dictionary.law.com/Default.aspx?selected=1969</ref> | ||
| − | # Determine that the statement was not privileged. To qualify as slander, the statement must be “unprivileged.”<ref | + | # Determine that the statement was not privileged. To qualify as slander, the statement must be “unprivileged.”<ref name="rf1" /> This means that in some situations, even if someone makes a false statement about you, you cannot recover against them because that statement is privileged, or protected. |
| − | #* Legislators who make statements within the performance of their "legislative activities," i.e., on the floor or in committee proceedings in the US Congress or state legislatures, are privileged. They cannot be sued for slander for statements made in these situations.<ref>http://www.pointoforder.com/2009/04/16/why-it-is-pointless-to-sue-a-member-of-congress-for-defamation/</ref> | + | #* Legislators who make statements within the performance of their "legislative activities," i.e., on the floor or in committee proceedings in the US Congress or state legislatures, are privileged. They cannot be sued for slander for statements made in these situations.<ref name="rf14">http://www.pointoforder.com/2009/04/16/why-it-is-pointless-to-sue-a-member-of-congress-for-defamation/</ref> |
#* There are some situations where lawmakers and courts have decided that the First Amendment principle of freedom of speech protects slanderous statements. These situations may involve court proceedings. If witnesses and parties to lawsuits could be liable for the slanderous comments they make while on the witness stand, they might be unwilling to testify. | #* There are some situations where lawmakers and courts have decided that the First Amendment principle of freedom of speech protects slanderous statements. These situations may involve court proceedings. If witnesses and parties to lawsuits could be liable for the slanderous comments they make while on the witness stand, they might be unwilling to testify. | ||
| − | #* For example, witnesses who make false statements at a deposition -- a type of court proceeding -- cannot be sued for slander. However, they may be criminally prosecuted for perjury.<ref>http://www.criminaldefenselawyer.com/crime-penalties/federal/perjury.htm</ref> | + | #* For example, witnesses who make false statements at a deposition -- a type of court proceeding -- cannot be sued for slander. However, they may be criminally prosecuted for perjury.<ref name="rf15">http://www.criminaldefenselawyer.com/crime-penalties/federal/perjury.htm</ref> |
#* If you are involved in a lawsuit and the opposing party makes false statements about you during a deposition given in connection with that lawsuit, you will not be able to sue them for slander even if you can prove that the statement was false, was published, and injured you in some way. This is because the statements given during a deposition are privileged. | #* If you are involved in a lawsuit and the opposing party makes false statements about you during a deposition given in connection with that lawsuit, you will not be able to sue them for slander even if you can prove that the statement was false, was published, and injured you in some way. This is because the statements given during a deposition are privileged. | ||
| − | # Determine if the statement is protected because the target is a public figure. Under the US Constitution, the public has the right to criticize the government and other public figures. Therefore, it is very difficult for public figures to recover for defamation.<ref | + | # Determine if the statement is protected because the target is a public figure. Under the US Constitution, the public has the right to criticize the government and other public figures. Therefore, it is very difficult for public figures to recover for defamation.<ref name="rf8" /> |
| − | #* For a public figure to prove defamation, s/he must prove all of the elements above. In addition, s/he must prove that the person who said the statements said them with “actual malice.” Actual malice means that the person who made the slanderous statement knew the statement wasn’t true, didn’t care whether it was true or not, and acted with reckless disregard for the truth.<ref>https://www.law.cornell.edu/supremecourt/text/376/254</ref> | + | #* For a public figure to prove defamation, s/he must prove all of the elements above. In addition, s/he must prove that the person who said the statements said them with “actual malice.” Actual malice means that the person who made the slanderous statement knew the statement wasn’t true, didn’t care whether it was true or not, and acted with reckless disregard for the truth.<ref name="rf16">https://www.law.cornell.edu/supremecourt/text/376/254</ref> |
#* People who are not elected officials but are influential or famous, like movie stars, must prove that whoever made the slanderous statement about them spoke with actual malice in order to recover for slander. | #* People who are not elected officials but are influential or famous, like movie stars, must prove that whoever made the slanderous statement about them spoke with actual malice in order to recover for slander. | ||
# Determine whether the statute of limitations has passed. In many US states, there is a statute of limitations for defamation suits. In other words, there is an “expiration date” past which you cannot sue for slander or libel, even if you can prove the statements were untrue, published, and caused you harm. Check your state or jurisdiction’s regulations regarding this limit. | # Determine whether the statute of limitations has passed. In many US states, there is a statute of limitations for defamation suits. In other words, there is an “expiration date” past which you cannot sue for slander or libel, even if you can prove the statements were untrue, published, and caused you harm. Check your state or jurisdiction’s regulations regarding this limit. | ||
| − | #* For example, in the the state of Georgia, the statute of limitations is one year.<ref>http://www.dmlp.org/legal-guide/georgia-defamation-law</ref> In Massachusetts, the statute of limitations is three years.<ref>http://injury.findlaw.com/torts-and-personal-injuries/time-limits-to-file-a-defamation-lawsuit-state-statutes-of.html</ref> | + | #* For example, in the the state of Georgia, the statute of limitations is one year.<ref name="rf17">http://www.dmlp.org/legal-guide/georgia-defamation-law</ref> In Massachusetts, the statute of limitations is three years.<ref name="rf18">http://injury.findlaw.com/torts-and-personal-injuries/time-limits-to-file-a-defamation-lawsuit-state-statutes-of.html</ref> |
#* Findlaw has a list of each US state’s statute of limitations.<Ref>http://injury.findlaw.com/torts-and-personal-injuries/time-limits-to-file-a-defamation-lawsuit-state-statutes-of.html</ref> | #* Findlaw has a list of each US state’s statute of limitations.<Ref>http://injury.findlaw.com/torts-and-personal-injuries/time-limits-to-file-a-defamation-lawsuit-state-statutes-of.html</ref> | ||
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#* If you have [[Hire a Lawyer When You Have Low Income | low income]], don't despair. Many attorneys offer pro bono services to low-income applicants. | #* If you have [[Hire a Lawyer When You Have Low Income | low income]], don't despair. Many attorneys offer pro bono services to low-income applicants. | ||
#* Because most defamation suits are contracted on a contingency basis, meaning the attorney takes his/her fees out of whatever damages you are awarded, an attorney may be willing to work with you even if you cannot afford the fee upfront.<Ref>http://www.alllaw.com/articles/nolo/personal-injury/lawyer-defamation-lawsuit.html</ref> | #* Because most defamation suits are contracted on a contingency basis, meaning the attorney takes his/her fees out of whatever damages you are awarded, an attorney may be willing to work with you even if you cannot afford the fee upfront.<Ref>http://www.alllaw.com/articles/nolo/personal-injury/lawyer-defamation-lawsuit.html</ref> | ||
| − | # Search for civil litigation attorneys in your area. In most cases, you will file your slander complaint in the state district court presiding over the location where the statements were said and heard.<ref>http://www.alllaw.com/articles/nolo/personal-injury/filing-lawsuit-slander.html</ref> (There are some exceptions, which will be covered in the next part.) There are many ways to locate an attorney. | + | # Search for civil litigation attorneys in your area. In most cases, you will file your slander complaint in the state district court presiding over the location where the statements were said and heard.<ref name="rf19">http://www.alllaw.com/articles/nolo/personal-injury/filing-lawsuit-slander.html</ref> (There are some exceptions, which will be covered in the next part.) There are many ways to locate an attorney. |
#* The American Bar Association maintains a database of local bar associations.<ReF>http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm</ref> These bar associations usually have free referral services. | #* The American Bar Association maintains a database of local bar associations.<ReF>http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm</ref> These bar associations usually have free referral services. | ||
| − | #* Your state's Bar Association website will likely have a directory of licensed attorneys. In many cases, such as Ohio's State Bar Association, these directories are searchable by location and specialization.<ref>https://www.ohiobar.org/Pages/Home.aspx</ref> | + | #* Your state's Bar Association website will likely have a directory of licensed attorneys. In many cases, such as Ohio's State Bar Association, these directories are searchable by location and specialization.<ref name="rf20">https://www.ohiobar.org/Pages/Home.aspx</ref> |
#* If you have low income, try using a public interest website such as LawHelp.org. They focus on finding attorneys for people with low incomes.<reF>http://www.lawhelp.org/about-us</ref> | #* If you have low income, try using a public interest website such as LawHelp.org. They focus on finding attorneys for people with low incomes.<reF>http://www.lawhelp.org/about-us</ref> | ||
| − | #* There are many online directories for attorneys. For best results, use more than one. Popular directories include Lawyers.com, LawInfo.com, and FindLaw.com.<ref>http://lawyers.findlaw.com/</ref><ref>http://www.lawinfo.com/</ref><ref>http://www.lawyers.com/find-a-lawyer.html</ref> | + | #* There are many online directories for attorneys. For best results, use more than one. Popular directories include Lawyers.com, LawInfo.com, and FindLaw.com.<ref name="rf21">http://lawyers.findlaw.com/</ref><ref name="rf22">http://www.lawinfo.com/</ref><ref name="rf23">http://www.lawyers.com/find-a-lawyer.html</ref> |
# Ask your friends and family for a referral. Friends and family are usually the best place to start when researching attorneys, because you can ask them about their personal experiences with the attorney.<ref>http://www.consumerreports.org/cro/money/consumer-protection/when-you-need-to-lawyer-up/overview/index.htm</reF> | # Ask your friends and family for a referral. Friends and family are usually the best place to start when researching attorneys, because you can ask them about their personal experiences with the attorney.<ref>http://www.consumerreports.org/cro/money/consumer-protection/when-you-need-to-lawyer-up/overview/index.htm</reF> | ||
#* Ask about specifics of their experience. Was the attorney upfront and clear about fees and services? Was the attorney on time and prepared for appointments? Was the attorney or someone involved in the case available when you had questions? Was your friend happy with the service s/he received?<Ref>http://hirealawyer.findlaw.com/attorney-fees-and-agreements/what-to-expect-from-your-lawyer.html</ref> | #* Ask about specifics of their experience. Was the attorney upfront and clear about fees and services? Was the attorney on time and prepared for appointments? Was the attorney or someone involved in the case available when you had questions? Was your friend happy with the service s/he received?<Ref>http://hirealawyer.findlaw.com/attorney-fees-and-agreements/what-to-expect-from-your-lawyer.html</ref> | ||
# Check online reviews. Several websites offer reviews of attorneys. It's a good idea to check these reviews for any attorneys you may be considering. Don't rely on this information as your only source, but it may be helpful in making your decision. | # Check online reviews. Several websites offer reviews of attorneys. It's a good idea to check these reviews for any attorneys you may be considering. Don't rely on this information as your only source, but it may be helpful in making your decision. | ||
| − | #* Websites offering attorney reviews include Avvo, FindLaw, Lawyers.com, and Martindale-Hubbell®.<ref>http://www.avvo.com/find-a-lawyer</ref><ref> http://lawyers.findlaw.com/?HBX_PK=attorney+reviews</ref><ref | + | #* Websites offering attorney reviews include Avvo, FindLaw, Lawyers.com, and Martindale-Hubbell®.<ref name="rf24">http://www.avvo.com/find-a-lawyer</ref><ref name="rf25"> http://lawyers.findlaw.com/?HBX_PK=attorney+reviews</ref><ref name="rf23" /><ref name="rf26">http://research.lawyers.com/Lawyer-Ratings.html</ref> |
| − | # Check the attorney's disciplinary records. Once you've narrowed your list of candidates down to two or three, using referrals and reviews to guide you, check their disciplinary records. You don't want to hire an attorney who has been found guilty of malpractice, disciplined for ethics violations, or had his/her license suspended.<ref>http://hirealawyer.findlaw.com/choosing-the-right-lawyer/researching-attorney-discipline.html</ref> | + | # Check the attorney's disciplinary records. Once you've narrowed your list of candidates down to two or three, using referrals and reviews to guide you, check their disciplinary records. You don't want to hire an attorney who has been found guilty of malpractice, disciplined for ethics violations, or had his/her license suspended.<ref name="rf27">http://hirealawyer.findlaw.com/choosing-the-right-lawyer/researching-attorney-discipline.html</ref> |
| − | #* For most states, you can check an attorney's record with the State Bar Association. In some states, you will go through the state Supreme Court's disciplinary board or commission. You can find a guide to where to search for an attorney's record on FindLaw.<ref | + | #* For most states, you can check an attorney's record with the State Bar Association. In some states, you will go through the state Supreme Court's disciplinary board or commission. You can find a guide to where to search for an attorney's record on FindLaw.<ref name="rf27" /> |
#* Some disciplinary actions are fairly minor, such as the attorney failing to pay bar fees on time. It's up to you to decide whether a disciplinary action is sufficient for you to disqualify the attorney from consideration. You should not hire an attorney who has been disciplined for anything major, such as ethics violations or malpractice. | #* Some disciplinary actions are fairly minor, such as the attorney failing to pay bar fees on time. It's up to you to decide whether a disciplinary action is sufficient for you to disqualify the attorney from consideration. You should not hire an attorney who has been disciplined for anything major, such as ethics violations or malpractice. | ||
| − | # Contact your candidates. With all of this information in hand, choose 2 or 3 top candidates and call their offices. In many cases, they will offer a free preliminary consultation via phone. Many will also offer free in-person consultations. Start with the telephone consultation and ask the following questions to determine whether to proceed with a formal interview.<ref>http://www.utahbar.org/public-services/i-need-a-lawyer/</ref><ref>http://hirealawyer.findlaw.com/choosing-the-right-lawyer/interviewing-a-lawyer.html</ref> | + | # Contact your candidates. With all of this information in hand, choose 2 or 3 top candidates and call their offices. In many cases, they will offer a free preliminary consultation via phone. Many will also offer free in-person consultations. Start with the telephone consultation and ask the following questions to determine whether to proceed with a formal interview.<ref name="rf28">http://www.utahbar.org/public-services/i-need-a-lawyer/</ref><ref name="rf29">http://hirealawyer.findlaw.com/choosing-the-right-lawyer/interviewing-a-lawyer.html</ref> |
#* What does the attorney charge for consultations? Be wary of attorneys who charge for an initial consultation. This is a sign they charge hourly, which is not a desirable situation for a slander case. | #* What does the attorney charge for consultations? Be wary of attorneys who charge for an initial consultation. This is a sign they charge hourly, which is not a desirable situation for a slander case. | ||
| − | #* What percentage of damages does the attorney take if you win the case? Contingency fees vary, but usually range between 30-40%.<ref>http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/lawyerfees_contingent.html</ref> | + | #* What percentage of damages does the attorney take if you win the case? Contingency fees vary, but usually range between 30-40%.<ref name="rf30">http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/lawyerfees_contingent.html</ref> |
#* How many similar cases has the attorney handled? What were their outcomes? You want to know that your attorney has experience in your type of litigation. | #* How many similar cases has the attorney handled? What were their outcomes? You want to know that your attorney has experience in your type of litigation. | ||
#* Can the attorney provide you with references? Be aware that the attorney must get permission from former clients before s/he can give you references, so you probably won't get these immediately. | #* Can the attorney provide you with references? Be aware that the attorney must get permission from former clients before s/he can give you references, so you probably won't get these immediately. | ||
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#* Ask about fees and costs. Be very leery of civil litigation attorneys who charge by the hour. This could be a sign that they aren't confident in your case. A contingency arrangement is by far the most common in defamation suits. Make sure that you are absolutely clear on what costs you need to pay up front and what percentage you can expect your attorney to take home if you win. | #* Ask about fees and costs. Be very leery of civil litigation attorneys who charge by the hour. This could be a sign that they aren't confident in your case. A contingency arrangement is by far the most common in defamation suits. Make sure that you are absolutely clear on what costs you need to pay up front and what percentage you can expect your attorney to take home if you win. | ||
#* Ask about the attorney's experience working in similar cases. Does the attorney have a good record of winning similar cases? Does s/he sound confident about yours? What advantages does this attorney offer that her/his competitors may not? How, specifically, does the attorney plan to achieve your objective? | #* Ask about the attorney's experience working in similar cases. Does the attorney have a good record of winning similar cases? Does s/he sound confident about yours? What advantages does this attorney offer that her/his competitors may not? How, specifically, does the attorney plan to achieve your objective? | ||
| − | # Listen to your attorney. Once you have interviewed your candidates and chosen an attorney, listen to him or her. S/he will understand the litigation process and will walk you through it. An attorney is ethically and legally obligated to pursue your best interests. Trust that s/he knows what s/he's doing.<ref>http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html</ref> | + | # Listen to your attorney. Once you have interviewed your candidates and chosen an attorney, listen to him or her. S/he will understand the litigation process and will walk you through it. An attorney is ethically and legally obligated to pursue your best interests. Trust that s/he knows what s/he's doing.<ref name="rf31">http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html</ref> |
#* This doesn't mean you shouldn't ask questions. Whenever you're unclear, ask! Your attorney should be responsive and informed. If your attorney doesn't answer questions for days or weeks on end, this may be grounds for breach of contract and you can find another attorney. | #* This doesn't mean you shouldn't ask questions. Whenever you're unclear, ask! Your attorney should be responsive and informed. If your attorney doesn't answer questions for days or weeks on end, this may be grounds for breach of contract and you can find another attorney. | ||
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#* For instance, in the earlier example, the cause of action would include the false statement: “I found three roaches in my pasta at that restaurant.” | #* For instance, in the earlier example, the cause of action would include the false statement: “I found three roaches in my pasta at that restaurant.” | ||
#* The injury you suffered might be a statement such as “after the roach comment, the restaurant lost $10,000 worth of business.” | #* The injury you suffered might be a statement such as “after the roach comment, the restaurant lost $10,000 worth of business.” | ||
| − | # Include any evidence you have regarding the statement. It is a good idea to provide evidence that shows the statement was untrue. Any evidence you can provide to show the damage you have sustained should also be included.<ref>http://www.alllaw.com/articles/nolo/personal-injury/filing-civil-lawsuit-defamation-expect.html</ref> | + | # Include any evidence you have regarding the statement. It is a good idea to provide evidence that shows the statement was untrue. Any evidence you can provide to show the damage you have sustained should also be included.<ref name="rf32">http://www.alllaw.com/articles/nolo/personal-injury/filing-civil-lawsuit-defamation-expect.html</ref> |
#* For example, to use the “roach in the pasta” example, you may have taken written statements from a fellow diner who heard the roach complaint and from the chef at the restaurant who states there were no roaches. Include copies of these statements to show that the statement was published (a third party heard it) and that it is untrue (the chef says there were no roaches). | #* For example, to use the “roach in the pasta” example, you may have taken written statements from a fellow diner who heard the roach complaint and from the chef at the restaurant who states there were no roaches. Include copies of these statements to show that the statement was published (a third party heard it) and that it is untrue (the chef says there were no roaches). | ||
#* If you have lost business or money or your job because of the false statement, provide evidence for this. For example, you could bring bank statements or receipts showing that your restaurant has made less money in the month since the roach statement was made. | #* If you have lost business or money or your job because of the false statement, provide evidence for this. For example, you could bring bank statements or receipts showing that your restaurant has made less money in the month since the roach statement was made. | ||
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=== Filing the Slander Lawsuit === | === Filing the Slander Lawsuit === | ||
| − | # Go to the court that has jurisdiction over the slander [[File a Lawsuit | lawsuit.]] The state district court presiding over the location where the statements were said and heard is the proper place to file the lawsuit.<ref | + | # Go to the court that has jurisdiction over the slander [[File a Lawsuit | lawsuit.]] The state district court presiding over the location where the statements were said and heard is the proper place to file the lawsuit.<ref name="rf19" /> |
#* For example, if a news anchor in New York City made a slanderous remark about someone who lived in Wisconsin, a New York court would have jurisdiction over the complaint. | #* For example, if a news anchor in New York City made a slanderous remark about someone who lived in Wisconsin, a New York court would have jurisdiction over the complaint. | ||
#* However, the court in Wisconsin could also have jurisdiction over the complaint if someone who lived in Wisconsin heard the statement (for example, via a phone conversation or on TV). | #* However, the court in Wisconsin could also have jurisdiction over the complaint if someone who lived in Wisconsin heard the statement (for example, via a phone conversation or on TV). | ||
| − | #* Think carefully about where you file the complaint. Slander suits may also be filed where you live or where the defendant lives. However, if you and the defendant live in different states or jurisdictions, the defendant may be able to require you to attend a federal court close to them. (This precedent was established in International Shoe v. Washington.)<ref>http://lawschool.mikeshecket.com/civpro/internationalshoecovwashington.html</ref> | + | #* Think carefully about where you file the complaint. Slander suits may also be filed where you live or where the defendant lives. However, if you and the defendant live in different states or jurisdictions, the defendant may be able to require you to attend a federal court close to them. (This precedent was established in International Shoe v. Washington.)<ref name="rf33">http://lawschool.mikeshecket.com/civpro/internationalshoecovwashington.html</ref> |
# Bring a copy of your complaint to court. Make sure that you have filled out any required forms and cover pages. If you are not sure what your court requires, contact the clerk’s office or look on their website. | # Bring a copy of your complaint to court. Make sure that you have filled out any required forms and cover pages. If you are not sure what your court requires, contact the clerk’s office or look on their website. | ||
#* Some states require that all civil suits filed begin with a “cover page” that is specific to that court. | #* Some states require that all civil suits filed begin with a “cover page” that is specific to that court. | ||
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#* The clerk should also be able to answer any questions that you may have about local court rules or procedures. | #* The clerk should also be able to answer any questions that you may have about local court rules or procedures. | ||
#* Ask any questions before you file the complaint. This may save you from costly mistakes later. | #* Ask any questions before you file the complaint. This may save you from costly mistakes later. | ||
| − | # Pay any fees required to file the complaint. A filing fee is required in order to file your complaint. Filing fees vary in amount based on the state, but most are between $100 and $300.<ref>http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/Budget%20Resource%20Center/Civil%20Filing%20Fees%20April%202012.ashx</ref> | + | # Pay any fees required to file the complaint. A filing fee is required in order to file your complaint. Filing fees vary in amount based on the state, but most are between $100 and $300.<ref name="rf34">http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/Budget%20Resource%20Center/Civil%20Filing%20Fees%20April%202012.ashx</ref> |
#* The fee may also vary depending on the amount of damages you are seeking. | #* The fee may also vary depending on the amount of damages you are seeking. | ||
#* If you have low income or are indigent, you may qualify for a fee waiver. Typically, you will have to file a form with the court to see if you qualify. Requirements vary by state and jurisdiction. For example, in California, you may be eligible to file for a fee waiver if your family income is less than $1,226 for a household of one, $1,659 for a household of two, etc.<Ref>ttp://www.courts.ca.gov/forms.htm?filter=FW</ref> | #* If you have low income or are indigent, you may qualify for a fee waiver. Typically, you will have to file a form with the court to see if you qualify. Requirements vary by state and jurisdiction. For example, in California, you may be eligible to file for a fee waiver if your family income is less than $1,226 for a household of one, $1,659 for a household of two, etc.<Ref>ttp://www.courts.ca.gov/forms.htm?filter=FW</ref> | ||
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#* Serve the other party using a private server. In most states, you are also allowed to hire a third party to serve the other person with the complaint. | #* Serve the other party using a private server. In most states, you are also allowed to hire a third party to serve the other person with the complaint. | ||
#* Serve by publication. This type of service is only available by permission of the court if you are unable to locate the defendant’s address. In this type of service, the court publishes notice of the lawsuit in the local newspaper for a specified period, usually a couple of weeks. The service is valid whether or not the defendant actually sees it. | #* Serve by publication. This type of service is only available by permission of the court if you are unable to locate the defendant’s address. In this type of service, the court publishes notice of the lawsuit in the local newspaper for a specified period, usually a couple of weeks. The service is valid whether or not the defendant actually sees it. | ||
| − | #* You can discover other serving options in the United States on the US Marshals website.<ref>http://www.usmarshals.gov/process/state.htm</ref> | + | #* You can discover other serving options in the United States on the US Marshals website.<ref name="rf35">http://www.usmarshals.gov/process/state.htm</ref> |
| − | #* One of the most common reasons for civil complaints to be dismissed is “inadequate service,” or a failure to give the other party adequate notice and a chance to respond.<ref | + | #* One of the most common reasons for civil complaints to be dismissed is “inadequate service,” or a failure to give the other party adequate notice and a chance to respond.<ref name="rf19" /> |
| − | # Keep track of the days after your complaint is filed. After you file your lawsuit and serve the defendant, the defendant usually has 30 days to respond to the suit. If the defendant responds with an “answer,” the suit will continue to go forward.<ref | + | # Keep track of the days after your complaint is filed. After you file your lawsuit and serve the defendant, the defendant usually has 30 days to respond to the suit. If the defendant responds with an “answer,” the suit will continue to go forward.<ref name="rf19" /> |
#* When the defendant files their answer, the court will mail you a copy of the answer with instructions on how to proceed. | #* When the defendant files their answer, the court will mail you a copy of the answer with instructions on how to proceed. | ||
| − | #* You automatically win the lawsuit if the defendant doesn't file an answer with the court clerk. This is called a default judgment.<ref>https://www.law.cornell.edu/wex/default_judgment</ref> | + | #* You automatically win the lawsuit if the defendant doesn't file an answer with the court clerk. This is called a default judgment.<ref name="rf36">https://www.law.cornell.edu/wex/default_judgment</ref> |
=== Proceeding with the Complaint === | === Proceeding with the Complaint === | ||
| − | # Keep a record of damages. To win a slander lawsuit, you must prove that you were damaged as a result of the slander. During the discovery process, your claims will be investigated. Keeping records of the damages will make this process go faster (and thus, be cheaper).<ref>http://www.alllaw.com/articles/nolo/personal-injury/lawyer-defamation-lawsuit.html</ref> | + | # Keep a record of damages. To win a slander lawsuit, you must prove that you were damaged as a result of the slander. During the discovery process, your claims will be investigated. Keeping records of the damages will make this process go faster (and thus, be cheaper).<ref name="rf37">http://www.alllaw.com/articles/nolo/personal-injury/lawyer-defamation-lawsuit.html</ref> |
| − | #* Keep a record of any damages to you. For example, if you lost your job because of the slanderous statements, keep a record of how long you were out of work. Note the salary you were making when you lost your job. Keep track of any additional expenses, such as gap health insurance, that you had during this time.<ref>http://www.nolo.com/legal-encyclopedia/defamation-lawsuits-do-you-have-case-against-former-employer.html</ref> | + | #* Keep a record of any damages to you. For example, if you lost your job because of the slanderous statements, keep a record of how long you were out of work. Note the salary you were making when you lost your job. Keep track of any additional expenses, such as gap health insurance, that you had during this time.<ref name="rf38">http://www.nolo.com/legal-encyclopedia/defamation-lawsuits-do-you-have-case-against-former-employer.html</ref> |
#* If you had to seek medical or psychological treatment as a result of the slanderous statements, keep all of your medical records and doctor bills. | #* If you had to seek medical or psychological treatment as a result of the slanderous statements, keep all of your medical records and doctor bills. | ||
#* Keep a list of people who could serve as witnesses to the damages you experienced. | #* Keep a list of people who could serve as witnesses to the damages you experienced. | ||
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#* Don't guess at anything. If you don't know something, just say "I don't know" or "I cannot speculate about that." Guessing in a deposition can get you into trouble. | #* Don't guess at anything. If you don't know something, just say "I don't know" or "I cannot speculate about that." Guessing in a deposition can get you into trouble. | ||
#* Never give more information than is asked for. It's tempting to launch into a long-winded defense of yourself. However, this is generally a bad idea, as it's a prime way for the other party's attorney to try to trap you into a contradictory statement. Answer questions with ''only'' the information requested. Don't volunteer more information than is asked for unless your attorney has coached you otherwise. | #* Never give more information than is asked for. It's tempting to launch into a long-winded defense of yourself. However, this is generally a bad idea, as it's a prime way for the other party's attorney to try to trap you into a contradictory statement. Answer questions with ''only'' the information requested. Don't volunteer more information than is asked for unless your attorney has coached you otherwise. | ||
| − | # Attempt to settle your complaint. If the defendant contacts you or your attorney and asks to resolve or settle the matter, consider your options. Talk with your attorney about your chances of winning the suit, and the possibility of obtaining a settlement from the defendant that you are happy with.<ref | + | # Attempt to settle your complaint. If the defendant contacts you or your attorney and asks to resolve or settle the matter, consider your options. Talk with your attorney about your chances of winning the suit, and the possibility of obtaining a settlement from the defendant that you are happy with.<ref name="rf19" /> |
#* Going to court can be very expensive. Sometimes the jury does not decide in your favor even if you are the correct party. | #* Going to court can be very expensive. Sometimes the jury does not decide in your favor even if you are the correct party. | ||
#* Additionally, sometimes the money that you are awarded by a jury is less than you wanted or expected. | #* Additionally, sometimes the money that you are awarded by a jury is less than you wanted or expected. | ||
#* Generally, settle the case if you can to save time and money. You'll have a better chance of recovering monetary damages. | #* Generally, settle the case if you can to save time and money. You'll have a better chance of recovering monetary damages. | ||
| − | # Consider Alternative Dispute Resolution (ADR). ADR involves any method of resolving a legal dispute other than litigation.<ref>https://www.law.cornell.edu/wex/alternative_dispute_resolution</ref> The two most common forms of ADR are mediation and arbitration. | + | # Consider Alternative Dispute Resolution (ADR). ADR involves any method of resolving a legal dispute other than litigation.<ref name="rf39">https://www.law.cornell.edu/wex/alternative_dispute_resolution</ref> The two most common forms of ADR are mediation and arbitration. |
| − | #* Mediation uses a trained individual to mediate negotiations between both parties. It can be very successful and is widely used to work out settlements amenable to both parties.<ref | + | #* Mediation uses a trained individual to mediate negotiations between both parties. It can be very successful and is widely used to work out settlements amenable to both parties.<ref name="rf39" /> |
#* Arbitration is a simplified version of a court trial. Rather than a judge or jury, your case will be decided by an arbitration panel, who are chosen by both parties. The process of discovery (investigation) and evidence presentation are streamlined. These hearings usually only last for a few days or weeks.<reF>https://www.law.cornell.edu/wex/alternative_dispute_resolution</ref> | #* Arbitration is a simplified version of a court trial. Rather than a judge or jury, your case will be decided by an arbitration panel, who are chosen by both parties. The process of discovery (investigation) and evidence presentation are streamlined. These hearings usually only last for a few days or weeks.<reF>https://www.law.cornell.edu/wex/alternative_dispute_resolution</ref> | ||
| − | # Proceed with the suit. If you decide not to settle, mediate, or arbitrate, you will have to proceed to a [[Win in Small Claims Court | court trial.]] At trial, both parties will present their evidence to prove their case. The ultimate decision will be up to a judge and/or jury.<ref | + | # Proceed with the suit. If you decide not to settle, mediate, or arbitrate, you will have to proceed to a [[Win in Small Claims Court | court trial.]] At trial, both parties will present their evidence to prove their case. The ultimate decision will be up to a judge and/or jury.<ref name="rf11" /> |
#* You may have the option to choose between a bench trial and a jury trial. In a bench trial, only a judge hears the evidence and makes a ruling. In a jury trial, the jury is responsible for making the decision. | #* You may have the option to choose between a bench trial and a jury trial. In a bench trial, only a judge hears the evidence and makes a ruling. In a jury trial, the jury is responsible for making the decision. | ||
#* A judge or jury can decide a slander suit based on many factors. However, because slander cases involve spoken statements, courts are likely to be very protective of the defendant due to a concern to preserve First Amendment free speech rights.<Ref>http://www.dmlp.org/book/export/html/1813</ref> | #* A judge or jury can decide a slander suit based on many factors. However, because slander cases involve spoken statements, courts are likely to be very protective of the defendant due to a concern to preserve First Amendment free speech rights.<Ref>http://www.dmlp.org/book/export/html/1813</ref> | ||
# Consult with your attorney. Your attorney should have the expertise you need to win your suit. Defamation suits involve a lot of investigation, as well as other things such as jury selection. Allow your attorney to do his or her job. | # Consult with your attorney. Your attorney should have the expertise you need to win your suit. Defamation suits involve a lot of investigation, as well as other things such as jury selection. Allow your attorney to do his or her job. | ||
# Be prepared to [[Be a Witness in Court | testify.]] If your case goes to trial, you should be prepared to testify to your side of the case in court. Your attorney will prepare you to testify. | # Be prepared to [[Be a Witness in Court | testify.]] If your case goes to trial, you should be prepared to testify to your side of the case in court. Your attorney will prepare you to testify. | ||
| − | #* Don't guess about information.<ref>http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html</ref> You are under oath to tell the truth, so don't speculate. As in the deposition, say you don't know if you're asked a question you can't answer. | + | #* Don't guess about information.<ref name="rf40">http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html</ref> You are under oath to tell the truth, so don't speculate. As in the deposition, say you don't know if you're asked a question you can't answer. |
#* Don't give your ''opinion'' of the other party. This can damage your credibility and could even the other party grounds for a defamation suit of their own. Stick only to the facts.<Ref>http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying</ref> | #* Don't give your ''opinion'' of the other party. This can damage your credibility and could even the other party grounds for a defamation suit of their own. Stick only to the facts.<Ref>http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying</ref> | ||
#* Keep calm. You may be very angry, but keep your cool while testifying. Outbursts or retaliatory statements can convince the judge and/or jury that you should not recover damages. | #* Keep calm. You may be very angry, but keep your cool while testifying. Outbursts or retaliatory statements can convince the judge and/or jury that you should not recover damages. | ||
