Monday, April 8, 2013

Defamation: Does Public or Private Figure Really Make a Difference?

Photo No 1 - credit below
So all this discussion about public figures and private figures -- does it really mean anything?

The answer is a resounding YES!   For many cases, the decision as to whether the plaintiff is a public figure or a private figure is case determinative.

In most instances, cases involving public figures are resolved in favor of the defendants without trial.  The issue is decided most often decided on a motion for summary judgment in which the court rules that even if one takes all the evidence in the light most favorable to the plaintiff, the plaintiff still cannot meet the legal test for liability first set out in New York Times v. Sullivan.

On the other hand, if the standard is that which is applied to private persons, the case is much more likely to go to the jury.  And as any trial lawyer will tell you, when a case goes to the jury the result simply cannot be predicted with any degree of certainty.  As some wag once put it, you put your fate in the hands of "six people who aren't smart enough to get off jury duty."

Photo credit no. 2
I don't agree with the snarky remark about jurors - but that's a topic for another day.

But there is no questions that juries, despite John Grisham's Runaway Jury, are not predictable.  They are given jury instructions, which they often try to follow.  But sometimes not.

When a court denies a summary judgment in a defamation case, which is often the case in private figure defamation cases, the parties must face the uncertainty of a verdict and the certainty of the enormous costs in going to trial.  Given the modern emphasis by courts on mediation, these factors often lead to settlements.  Indeed an estimated 97% of civil lawsuits that are filed are resolved without trial.

So the determination of public figure vs. private figure does make an enormous difference in defamation cases.

photo credit no. 1: <a href=""></a> via <a href="">photopin</a> <a href="">cc</a>

photo credit no. 2: <a href="">foxgrrl</a> via <a href="">photopin</a> <a href="">cc</a>

Wednesday, April 3, 2013

Proving a Defamation Case: Public Figure vs. Private Figure

So how does the determination of public figure vs. private figure make such a huge
difference in exposure to liability in defamation cases?  Here's a brief synopsis of what lawyers face in each of the two types of cases.

Public figure case:

Plaintiff must prove:
  • Defendant made a false statement of fact
  • The false statement damaged the Plaintiff's reputation
  • That the statement was made with constitutional malice, which means:
    •  The defendant KNEW the statement was false when it was made, or
    • The defendant has a "subjective awareness" of probable falsity (this means that the plaintiff must prove the defendant's mental awareness, not just that a reasonable person would have had this awareness), or
    • The defendant engaged in purposeful avoidance of the truth
  • Plaintiff does NOT meet his burden by proving ill will, negligence, or breach of professional or journalistic standards.  These are NOT sufficient.
  • Plaintiff must prove each of these elements by an enhanced standard of "clear and convincing evidence", which is an ill-defined standard that is greater than the normal preponderance of evidence standard used in civil cases, but not quite to the beyond a reasonable doubt standard used in criminal cases.  To put this in perspective, this is the same standard often used in civil mental commitment cases.
  • Defendant has no burden to prove that his statements were true.
Private figure case:

Plaintiff must prove:

  • Defendant made a false statement of fact
  • The false statement was:
    •  defamatory per se (attacked person in their profession, asserted criminal activity, accused person of having a "loathesome disease," or asserted that a woman was unchaste, or 
    • Damaged the plaintiff's reputation in the community
  • Defendant's statement was made with "fault" - often meaning that the statement was made without reasonable care.
  • Plaintiff must prove these elements only by a preponderance of the evidence, that is, a "more likely than not" standard.  This means that the facts have been proven by the slightest amount of evidence to have been more likely.  Lawyers often explain this in terms of percentages.  If the jury finds the weight of evidence to be 50.000001 to 49.999999, the plaintiff has carried his/her burden.
For lawyers, the difference is dramatic.

photo credit: <a href="">Butte-Silver Bow Public Library</a> via <a href="">photopin</a> <a href="">cc</a>

Monday, April 1, 2013

Stars Fall & the Joys of Self Publishing

A diversion for the normal topics on my blog.

In March, my legal thriller Stars Fall sold nearly 50% more ebook copies on Amazon than any month since its release in early 2012, over a year ago.  In fact, the rate on sales for Stars Fall has been incrementally climbing each month since last fall.

Total sales have long since surpassed the number of people I know, so I'm not sure who is buying the book at this point.  Unfortunately, Amazon's statistics don't give demographics other than total sales so I don't know who is buying the book or where they are located.

Don't misunderstand.  My novel is not selling at bestseller numbers.  John Grisham and David Balducci need not worry about my book siphoning sales from their latest thrillers.

But it has been rewarding and fun.

So if you haven't been able to hook that agent, or you have an old novel in your closet, think about the modern means of self publishing.  I don't know if it's for everyone.  But as for me, it was the right choice.