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>

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