Starting a Defamation of Character Lawsuit

If you've suffered harm due to a defamatory statement by another, you may be able to pursue a lawsuit for compensation. Here are the first steps.

Defamation of character is a wrongful act where someone makes a false statement of fact that injures the reputation of another person. In this article, we’ll discuss some of the important first steps to pursuing a lawsuit for defamation of character.

Establish The Legal Elements

The first step in starting your defamation case is to figure out whether or not you have a valid claim. In legalese, this is called establishing a prima facie case.

Elements of Defamation

Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements must exist:

  • publication to someone other than the person being defamed;
  • of a false statement;
  • of fact (rather than opinion);
  • that injures the reputation of the person being defamed (“plaintiff”), and
  • is not privileged.

See Legal Elements of a Defamation Case for more detail.

Public Figures v. Private Figures

Generally, public figures, public officers, and limited public figures must overcome a higher burden of proof to establish that they have been defamed. This means that, if you are a public figure (like a local politician), you have to prove that the defamer made the statement with either knowledge of its falsity, or in reckless disregard for the truth.

Calculate Losses

There are three types of damages in a defamation case:

  • actual damages
  • assumed damages, and
  • punitive damages.

Actual damages are all damages that the plaintiff has suffered with respect to his or her property, business, trade, profession or occupation, including any expenses the plaintiff had to pay as a result of the defamatory statements. Assumed damages are damages that the court assumes the plaintiff suffered. This can be a nominal amount as low as one dollar. Punitive damages are damages meant to punish the defendant for particularly egregious conduct.

See Calculating Damages in a Defamation Case for more detail on this step.

Gather Evidence

If you plan on filing a lawsuit, you should immediately begin gathering any and all evidence about the defamatory statement, including proof that the defendant(s) made the statement, and the damages that you have suffered. Don’t forget to print copies of emails or websites that are not in your control. Also, compile a list of witnesses that can verify they heard or read the defamatory statement. However, you should consult with your attorney before you take their written statements as this might be discoverable by the defendant.

Retain An Attorney

Defamation lawsuits usually involve complex legal issues so, if you’re thinking about filing a lawsuit, you might want to speak with a lawyer who specializes in the subject.

Generally, attorneys that represent plaintiffs in defamation cases work on a contingency basis. This means that, if you receive a judgment or settlement in your favor, the attorney will charge you percentage of the net recovery (after the attorney is reimbursed for costs). Typically, this is between 25% and 40%, depending upon when the case resolves. For example, often an attorney will charge 25% if the case resolves before the lawsuit is filed, 33% if the case resolves a certain number of months before trial, and 40% thereafter.

Each state bar regulates the attorney-client relationship, which includes limitations on attorney fees.