Filing a Civil Lawsuit for Defamation: What to Expect
If you decide to sue your defamer for libel or slander, here are the basic steps you'll need to follow.
Defamation is the publication of a false statement that causes you to be harmed in some way. Whether the statement is published in the paper, on the Internet, or is merely spoken to another, it has the power to harm you. You can take action by consulting with a lawyer. But what does that entail? And, if you decide to pursue a lawsuit, what will the process be like?
(To find out if your case merits a claim, see The Legal Elements of a Defamation Case).
When you first meet with your attorney, be as thorough as possible. Bring a copy of the statement (if written). If it was made online, bring a printout of the page and the comments, if any, that follow. Make a list of people your attorney should talk to who may have information that would make them helpful witnesses. Provide their contact information if you have it.
Also, if you are seeking monetary reimbursement, bring documentation such as accounting or bank statements -- anything that shows that you have lost money. If you have been terminated from a job as a result of defamation, get a copy of your personnel file and bring it with you. Make sure to bring anything that might be relevant to your attorney. He or she can tell you if some of the material is unnecessary, but it is better to be over-prepared than not prepared enough.
Finally, be honest. You need to be able to trust your attorney, and vice versa. You need to provide him or her with all of the relevant facts, even the ones you think may be harmful to your case. That sort of information will eventually come out anyway, and it is better for your lawyer to know about it upfront and decide how to handle it than to be caught off guard later. Most importantly, your attorney needs to be able to give you the best advice possible -- and, to do that, he or she needs to have as much information as possible.
First Steps in a Defamation Lawsuit
File The Complaint
Once you've met with your attorney and he or she has done some initial investigation, a Complaint will be filed. This is the document that initiates the lawsuit. However, it is important to bear in mind that lawsuits like these move more slowly than most people would like. Filing a lawsuit does not mean that all will be said and done in a couple of months. Sometimes it takes a year or more for a case to go to trial, if it is not settled. Settlement negotiations can also be ongoing over the life of a case.
Service and Discovery
After a lawsuit is filed, the defendant has to be served and has a brief window of time in which to respond in writing. Then, the court issues a scheduling order, which gives all the important deadlines in a case. At that point, the process called "discovery" begins. Discovery is the formal investigation undertaken by both sides to a case. Each party will send the other (through attorneys) written questions called Interrogatories. These questions are answered under oath, and they help the opposing party find out more about you, your potential witnesses, and the facts of your case.
The other party probably will also ask you to produce documents that back up your claims. Your attorney will work with you to gather documents and answer questions. Sometimes there are reasons that you can withhold documents or decline to answer questions, and your attorney can advise you about that.
Then, depositions will probably occur. A deposition is an interview under oath during which the attorney for the other party asks you questions. This is an opportunity for him or her to size you up and determine what kind of witness you will be at trial, how a jury might perceive you, and how strong your claims are. Your lawyer will help you prepare. Usually the two opposing parties in a case are deposed, but sometimes other witnesses may be questioned as well, such as doctors, friends or relatives who have knowledge about your case.
For more on how these work, see this page on depositions during a lawsuit.
What About Settlement?
Once the discovery process is over, settlement negotiations typically begin in earnest. Attorneys think about settlement throughout the case, but the discovery process provides the information that most attorneys need to assess the likely outcome of the case (should it proceed through trial), and they can advise their clients about settlement, armed with this information.
Whether to settle a case out of court or go to trial is ultimately up to the client. However, it is important to consider your attorney's advice because he or she has enough experience to know how strong or weak your case is. For a variety of reasons, attorneys may advise settling even strong cases, depending on the situation. You may have a great deal of anxiety about trial, which can be stressful. There may be information you do not want publicized that may come out at trial. Another factor is that juries in some areas tend to give only small damages awards -- it is possible for a jury to find in your favor and still refuse to give you very much money, especially in a defamation case where quantifiable damages can be difficult to establish.
Many people are impatient and risk-averse, and would rather have something guaranteed now than face the risk of getting nothing at all in the future. These are all things to consider when you think about settlement. You should trust your attorney but, in the end, deciding whether to settle is up to you.
The Pitfalls of Defamation Litigation
Finally, it is important to consider the potential side effects of defamation litigation. While a lawsuit is definitely an option to redress a wrong, and you may succeed, media coverage of it may make the statement more widely publicized than it was before, compounding the harm. Even if the case settles, settlements are often confidential and the public may be left with the wrong impression about the outcome. These cases can also be costly. Unless your attorney takes the case on a contingent fee basis, gathering facts and finding experts can be very expensive.