The Trial in a Defamation Lawsuit

If you can't settle your defamation claim and head to court, here's what to expect.

In very basic terms, defamation occurs when someone makes a false statement about you, causing harm to your reputation. Defamation can form the basis of a civil lawsuit, meaning you can sue the person who made the defamatory statement, and can recover compensation for your damages. If you defamation case goes to court, there are a few things you - or rather, your lawyer - will be trying to prove.

Key Elements

There are two types of defamation: libel and slander. A defamatory statement that is written or recorded would constitute libel, while one that is merely spoken would be considered slander.

So, when it comes to proving defamation, what do you need to show? Whether the defamatory statement takes the form of libel or slander, the basic elements are usually the same (although there may be variations from state to state).

The statement is false. If a statement is true, it can’t be defamatory. The other side of the coin is that the statement must be capable of being proven false. This means that most opinions -- even the meanest and most disparaging -- cannot be defamatory.  

The statement was published. This simply means that the statement was made, and was heard or read by a third party (someone other than the plaintiff). This requirement does not mean that the statement must be published in a newspaper or on the internet, although that obviously would qualify as publication.

The statement caused harm. The subject of the statement must be able to show that their reputation was harmed. In other words, what were the negative consequences of the statement? Did the person lose their job? Did they suffer harassment from neighbors or the press?

With some types of statements, harm to reputation is presumed. These include statements that impugn a person’s business or trade, and statements that falsely accuse someone of having committed a crime. These kinds of statements are considered “per se defamatory” or “actionable per se,” meaning harm is a given in the eyes of the law.

The statement wasn’t privileged.  There are a few situations in which free speech considerations win out even when a statement might be otherwise considered defamatory.

The Trial

Jury Selection

Juries are chosen from a pool of prospective jurors at the beginning of each trial. A jury is chosen by deselecting jurors from the panel, one-by-one, usually through challenges. Each side has a limited number of challenges, determined by the civil court rules of your jurisdiction. A party may challenge a juror for any reason aside from discriminatory bases like race or gender, but at the same time, no reason needs to be given for the challenge.

Opening Statements

After a jury is selected, the trial begins with the opening statement to the jury. The plaintiff has the first opportunity to provide an overview of his or her case, explain the burden of proof, and argue how the evidence will demonstrate that his or her client has been defamed. The defendant then has an opportunity to provide an overview of their version of the events. Neither party may make conclusory arguments. A lawyer can evade this rule by stating something along the lines of, "The evidence will show …."

Testimonial Phase

Following the opening statements, the testimonial phase begins. During this phase, witnesses (lay and expert) are called upon to testify and evidence is offered (as exhibits). First, the plaintiff calls a witness to conduct a direct examination. The defendant then will be able to cross-examine the witness, but only within the scope of issues of the direct examination. Unlike a direct examination, leading questions are permitted during a cross-examination. After the defendant completes the cross-examination, the Plaintiff has an opportunity to redirect the witness. When the plaintiff has called all his or her witnesses, the plaintiff "rests" his or her case. The defense then has an opportunity to present his or her case by calling and examining witnesses.

Closing Statements

After all the evidence is presented and the testimonial phase is complete, attorneys for both sides will be able to summarize their arguments for the jury using the important evidence presented at trial. Depending on the jurisdiction, the order for the closing arguments may be made in reverse order from the opening statements.

Awarding Damages After Winning At Trial

If the plaintiff's case is successful, the jury will be instructed to award "damages" - that is, an amount of money to be paid by the defendant to the plaintiff. To find out what goes into it, see How the Jury "Calculates" Your Personal Injury Award.

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