Winning Defamation Lawsuits

Nicholas Carroll
July 25, 2015
An annotated excerpt from Fighting Slander.

Rumor, urban legend, and far too many legal websites say that lawsuits over defamation of character are not worth pursuing.

That depends. If your feelings are hurt a bit; if you are a victim of high school gossip; if co-workers tell people that you are a jerk; if your boss treats you with contempt (but never actually says anything) – you probably don't have a winning legal case, no matter how much it has ruined your life.

In ten years of writing about libel and slander, I've seen two big exceptions – "causes for action" – where plaintiffs in fact do win, win real monetary awards rather than just a token few dollars, and walk out of court with both vindication and cash. Those two types of lawsuit are for:

Economic Damages, a.k.a. Financial Harms

"Economic damages" brings up visions of wheeling and dealing and big money. Not so. Most of the successful financial harms lawsuits I've seen over the last ten years have been about salaried jobs, sometimes white collar, but more often blue collar.

Why? Because white-collar organizations (or departments) are better at back-stabbing through innuendo, and "damning by faint praise." Yes, the paper trail often hangs white-collar organizations when it's a broad "pattern of abuses," supported by thousands of different workers' email files, like sweating telecommute workers for unpaid hours – but a paper trail about one person is unlikely to create a winning case.

Blue collar workers, on the other hand, take it on the chin in almost unbelievable ways, about 90% of the actionable cases being bosses trashing them to management, co-workers, and even calling prospective employers to bad-mouth you. Sure, co-workers may trash you on their own – but it's when they're repeating the boss's trash talk that you develop a cause for action against the company. (Suing co-workers is not a great recourse; a jury is likely to take a "he said, she said" attitude, and dismiss the lawsuit.)

Causes for action that get monetary awards:

• Loss of promotion.
• Rejected for a (better-paying) job elsewhere.

• Loss of rank (and future better salaries). In organizations with rank – not just military or police, that includes teaching and many other professions – the loss of a promotion can pull down your entire career earnings.

Emotional Distress

Document this cause for action. Better yet, get your spouse or a close relative to keep a diary. I've spoken to hundreds of defamation victims over the last ten years, and I know what it does to a person's mind. In fact, it's more damaging to be accused of something you did not do, than of something that you actually did do. Nevertheless, in court the judge and jury are going to want "expert testimony".

Note: there are exceptions. A woman won over $100,000 against a big box chain when the store security physically grabbed her in the parking lot, accusing her of theft(I doubt they knew the right legal terms). Big mistake, because the store had already accepted her check, and in doing so, had "completed a contract." It was too late for criminal action; by now it had become a matter for civil court.

Building a Defamation Lawsuit

One pattern jumps out immediately: most of the sizable awards – $150,000 and up – were made in cases where slander or libel was coupled with another offense, such as breach of contract, financial harms, or emotional distress. This is probably because juries have a hard time pegging a dollar amount to "harm to reputation." They're more comfortable if there's a dollar amount being waved under their noses. Or even if there's a strong sympathy angle, in emotional distress.

Moral: ideally, don't hitch your cart to defamation alone. Try to find another horse to help pull. Notice how in the emotional distress example above, the woman who was grabbed in the parking lot had breach of contract and public humiliation on top of emotional distress.

Note: it's the instinct of lawyers to pile on as many claims as possible, in the hope something will stick – so it would be unusual to see a lawsuit for simple slander or libel. I talk to a lot of very good lawyers, and most see the same pattern I do: defamation lawsuits are most successful when they're coupled with other claims.

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