Defamation can occur when someone makes a false statement of fact about you, and you suffer harm as a result (financial damage or harm to your reputation, for example). In this article, we’ll discuss some of the important evidence that you will need to gather (and be ready to present) in order to make sure your defamation lawsuit is successful.
In any kind of civil lawsuit, the purpose of evidence is to persuade the trier of fact—in a defamation trial, that's usually a jury—that a fact or issue of the case is or is not established. Evidence can either be direct or circumstantial.
Direct Evidence. Direct evidence means that the evidence supports the disputed fact without the need for any intervening inference. For example, a witness testifying that they heard the defamatory statement would be direct evidence.
Circumstantial Evidence. Circumstantial evidence, on the other hand, consists of a fact or series of facts that, if proven, indirectly prove another fact. Circumstantial evidence is the most common form of evidence. In a defamation case, an example of circumstantial evidence would be proof that the defendant is the domain name owner of a website where a defamatory statement was posted.
There are four common forms of evidence in a defamation case: testimonial, documentary, physical, and demonstrative.
Testimonial Evidence. Testimonial evidence is oral or written evidence that is offered in court, usually by oath or affirmation under penalty of perjury. This type of evidence can include lay or expert witness testimony.
Documentary Evidence. Documentary evidence is any evidence introduced at trial in the form of documents or writings—for example, an email containing the defamatory statement.
Physical Evidence. Physical evidence, or real evidence, is a material object introduced at trial. These objects are tangible, meaning they can be seen, touched, or felt.
Demonstrative Evidence. Demonstrative evidence is evidence that illustrates or represents other evidence that is introduced at trial. For example, a timeline showing when the defamatory statements were made would be demonstrative evidence.
When you gather your evidence, it must be focused on meeting all elements of a defamation claim. This is sometimes called establishing a "prima facie" case. Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements must be satisfied:
Burden Of Proof. The law requires that these elements be established in a manner that meets the burden of proof. The burden of proof in a civil lawsuit is usually "by a preponderance of the evidence" (i.e., greater than 50% chance that the proposition is true).
Most evidence for a defamation case will be found and gathered by interviewing witnesses, obtaining documents, conducting legal research, and consulting with experts.
Interviewing Witnesses. You will need to gather a list of witnesses who will be able to testify that they heard or read the defamatory statement. The information they provide you must be verified. In addition, other factors must be considered, such as whether or not a jury will find these witnesses credible.
Obtaining Documents. If the defamatory statement was made in writing, such as in a magazine or newspaper, or even online through a blog, website, or email, make sure to save a copy. This is especially important for writings that are not in your control, such as someone’s Twitter feed (screenshots are a good way to preserve online statements). You should also collect receipts, paystubs, and other documents to support your claim for actual damages.
Conducting Legal Research. It is also important to research case law to determine how courts have interpreted certain legal issues. For example, perhaps in your case, you want to assert that being called a “jackass” is a defamatory statement. However, if a previous case established that this type of statement is merely an opinion, you will have a more difficult time making your case.
Consulting With Experts. Experts can be an invaluable tool to help you assess the damages you have suffered with respect to your property, business, trade, profession or occupation, and for those losses for which money is only a rough substitute—such as shame, mortification, or emotional distress.
Preparing For Potential Defenses. Though not part of your prima facie case, it is also a good idea to gather evidence to rebut any potential defenses to a defamation lawsuit that the defendant may have. For example, if you lost your job as a result of the defamatory statement, in order to recover the full amount of your salary loss, you will need to prove that you attempted to mitigate the harm (i.e., you will need to provide evidence that you looked for a job afterwards, but couldn't find one).
Much evidence is obtained during the discovery phase of a defamation case. Discovery is a pretrial stage where both sides exchange information in preparation for trial. The length of this period varies according to the type of case and jurisdiction.
Common discovery tools used in a defamation case include:
The rules for evidence during discovery are generally more lenient than those followed during trial. For example, during trial, evidence must be relevant, meaning that it must have a tendency to prove or disprove a fact that is of consequence. During discovery, generally, the evidence must only be able to reasonably lead to other matters that could bear on an issue in the case.
Discovery can be very expensive and time-consuming. In most defamation cases, discovery makes up the bulk of the lawsuit costs. An effective discovery game plan requires both in-depth knowledge of evidence rules and familiarity with legal strategies. It's critical to have an experienced defamation lawyer on your side.