Gathering Evidence in a Defamation Case
Defamation is a wrongful act that occurs when someone makes a false statement of fact about you, and you suffer harm to your reputation as a result. In this article, we’ll discuss some of the important evidence that you will need to gather in order to make your defamation claim is successful.
Types Of Evidence in a Defamation Case
The purpose of evidence is to persuade the trier of fact -- usually the jury in a defamation lawsuit -- that a fact or issue of the case is or is not established. Evidence can either be direct or circumstantial.
Direct Evidence. Direct evidence means that the evidence supports the disputed fact without the need for any intervening inference. For example, a witness testifying that they heard the defamatory statement would be direct evidence.
Circumstantial Evidence. Circumstantial evidence, on the other hand, consists of a fact or series of facts that, if proven, indirectly prove another fact. Circumstantial evidence is the most common form of evidence.
Forms Of Evidence in a Defamation Case
There are four common forms of evidence in a defamation case: testimonial, documentary, physical, and demonstrative.
Testimonial Evidence. Testimonial evidence is oral or written evidence that is offered in court, usually by oath or affirmation under penalty of perjury. This type of evidence can include lay or expert witness testimony.
Documentary Evidence. Documentary evidence is any evidence introduced at trial in the form of documents or writings. For example, an email containing the defamatory statement.
Physical Evidence. Physical evidence, or real evidence, is a material object introduced at trial. These objects are tangible, meaning they can be seen, touched, or felt.
Demonstrative Evidence. Demonstrative evidence is evidence that illustrates or represents other evidence that is introduced at trial. For example, a timeline showing when the defamatory statements were made would be demonstrative evidence.
Supporting Your Prima Facie Case For Defamation
What Is Your Prima Facie Case? When you gather your evidence, it must be focused on meeting allelements of a defamation claim. This is called establishing a "prima facie" case. Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements must be satisfied:
- 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.
Burden Of Proof. The law requires that these elements be established in a manner that meets the burden of proof. The burden of proof in a civil matter is usually a preponderance of the evidence (i.e., greater than 50% chance that the proposition is true).
Sources Of Evidence
Most evidence for a defamation case will be found and gathered by interviewing witnesses, obtaining documents, conducting legal research, and consulting with experts.
Interviewing Witnesses. You will need to gather a list of witnesses who will be able to testify that they heard or read the defamatory statement. This can be any third party, including the public or a group of people. The information they provide you must be verified. In addition, other factors must be considered, such as whether or not a jury will find them credible.
Obtaining Documents. If the defamatory statement was made in writing, such as in a magazine or newspaper, or even online through a blog, website, or email, make sure to save a copy. This is especially important for writings that are not in your control, such as someone’s Twitter feed. You should also collect receipts, paystubs, and other documents to support your claim for actual damages.
Conducting Legal Research. It is also important to research case law to determine how courts have interpreted some of the legal issues. For example, perhaps in your case, you want to assert that being called a “jackass” is a defamatory statement. However, if a previous case established that this type of statement is merely an opinion, you will have a more difficult time making your prima facie case.
Consulting With Experts. Experts can be an invaluable tool to help you assess the damages that you have suffered with respect to your property, business, trade, profession or occupation, and for those losses for which money is only a rough substitute -- such as shame, mortification, or hurt feelings.
Preparing For Potential Defenses. Though not part of your prima facie case, it is also a good idea to gather evidence to rebut any potential defenses the defendant may have. For example, if you lost your job as a result of the defamatory statement, in order to recover the full amount of your salary loss, you will need to prove that you attempted to mitigate the harm (i.e., you will need to provide evidence that you were looking for a job afterwards).
The Discovery Process
Most of the evidence is usually obtained during discovery. Discovery is a pretrial stage where both sides exchange information in preparation for trial. The length of this period varies according to the type of case and jurisdiction.
Common discovery tools used in a defamation case include:
- interrogatories (questions the other party must answer in writing and under oath)
- depositions (oral, interviews taken under oath by opposing counsel)
- requests for production of documents
- requests for admissions, and
The rules for producing evidence during discovery, however, are generally more lenient than during trial. For example, during trial, evidence must be relevant, meaning that it must have a tendency to prove or disprove a fact that is of consequence. During discovery, generally, the evidence must only be able to reasonably lead to other matters that could bear on any issue that is or may be in the case. Privileges, like the attorney client privilege, must still be observed.
Discovery can be very expensive and time-consuming. In most defamation cases, the costs of discovery make up the bulk of the lawsuit costs. An effective discovery game plan requires both in-depth knowledge of evidence rules and familiarity with legal strategies.