Starting a Defamation of Character Lawsuit

If you've been harmed by a defamatory statement, the first steps in a libel or slander lawsuit are crucial.

Defamation is a wrongful act in which one person makes a false statement of fact that injures the reputation of another. A defamatory statement that's spoken is called "slander", while one that's written or published (or posted online) is called "libel". Getting a legal remedy for harm resulting from defamation often means filing a civil lawsuit in court. In this article, we'll discuss some of the important first steps in considering (and starting) a lawsuit for defamation.

Step One: Do You Have a Valid Claim for Defamation?

The first step in starting your defamation case is to figure out whether or not you actually have a valid claim. Perhaps the best way to get a rough answer to this question is to look at the elements that come together to define defamation.

Though states may vary slightly as to the specifics, in general all of the following elements must exist in order to establish the speaker's (or publisher's/poster's) liability:

  • publication to someone other than the person making the claim (a third party must have heard it or read it)
  • the statement must be false (if what was said/posted/published was true, no matter how embarrassing or harmful, there can be no defamation case)
  • the statement must be offered as a fact (rather than as an opinion)
  • the statement must injure the reputation of the person being defamed (the "plaintiff"), and
  • the statement must not be subject to any kind of privilege that might shield the speaker/poster/publisher from liability.

Learn more about the legal elements of defamation, libel, and slander.

If You're a Public Figure. Generally, public figures and public officers must overcome a higher burden of proof in showing that they were defamed. So, if you are a public figure—a local politician, for example—you likely need to prove that the defendant made the statement either knowing it was false, or in reckless disregard for whether or not it might be true.

Step 2: Calculating Your Damages In a Defamation Case

There are usually three types of potential damages in a defamation case:

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

Actual damages are provable, compensable losses 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. Lost income is an example of actual damages in a defamation case.

Assumed damages are those the court assumes the plaintiff suffered, and are often ordered when actual damages can't be established. Assumed damages can be a nominal amount, as low as one dollar.

Punitive damages are meant to punish the defendant for particularly egregious conduct, and aren't usually imposed in defamation cases.

Learn more about calculating damages in a defamation case.

Step 3: Gathering Evidence of Defamation

If you plan on filing a lawsuit, it's crucial to gather all available evidence related to the defamatory statement and its impact on you, including proof that the defendant made the statement, and the damages you have suffered.

If the defamatory statement was made online, don't forget to print copies of emails or websites that are not in your control (in case what was posted gets taken down). Also, compile a list of witnesses who can verify they heard or read the defamatory statement, or who can vouch for how it affected you. It might be a good idea to wait before gathering any written statements from witnesses, since these might be "discoverable" by the defendant, meaning you may have to turn them over once your lawsuit gets started.

Step 4: Talk to an Attorney

Defamation lawsuits can involve complex legal issues, so if you're thinking about filing a lawsuit, you might want to speak with a lawyer who specializes in these kinds of cases.

Attorneys who represent plaintiffs in defamation cases typically work under a contingency fee agreement. This means that if you receive a judgment or settlement in your favor, the attorney will receive a percentage of the net recovery. 33 percent is typical, but the percentage might depend on when the case resolves. For example, the attorney charge 25 percent if the case resolves before a lawsuit is filed, 33 percent if the case resolves a certain number of months before trial, and 40 percent if trial is necessary.

Get tips on finding the right personal injury lawyer.

Step 5: Filing the Lawsuit In Court

Once you have an attorney, you'll work together to figure out your best strategy. Early settlement is always possible, but taking the matter to court is often necessary. That means your attorney will prepare and file a "complaint for defamation" or similarly-titled document that will start your lawsuit, and the defendant will be "served" with the lawsuit and a summons to make an appearance in court (this "appearance" means filing an answer to your complaint). Learn more about what to expect when you file a defamation lawsuit.