In the realm of personal injury law, defamation cases involve a false statement of fact that injures the reputation of another. In this article, we’ll discuss how an attorney can help you in your defamation case.
Fee Arrangements -- What’s It Going to Cost Me?
When thinking about hiring an attorney, the first question on everyone’s mind is usually, “What’s it going to cost me?” Generally, attorneys that represent plaintiffs in defamation cases work on a contingency basis.
This means that, if you receive a judgment or settlement in your favor, the attorney will charge you a percentage of the net recovery (after the attorney is reimbursed for costs). Typically, this is between 25% and 40%, depending upon when the case resolves. For example, often an attorney will charge 25% if the case resolves before the defamation lawsuit is filed, 33% if the case resolves a certain number of months before trial, and 40% thereafter.
If you are a defendant in a defamation case, likely the attorney will request to be paid hourly. In this situation, the attorney will send you an itemized bill each month reflecting the number of hours he or she worked on your matter and the expenses incurred. This type of fee arrangement will also likely be coupled with a retainer, or an advance fee to secure the attorney’s services.
Each state bar regulates the attorney-client relationship, which includes limitations on attorney fees.
Paying for Costs
If you are a plaintiff, the biggest advantage in hiring an attorney is that the attorney will usually pay most, if not all, of the litigation costs. Defamation cases can be very expensive because they are very fact-driven. Thus, a lot of time and money will be spent in building the case through depositions and interrogatories.
In addition, a plaintiff in a defamation case may have to prove actual damages. Actual damages are all damages 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. Providing a monetary figure to value the harm to your reputation or business can be difficult. Usually, you will have to hire an expert witness to come up with this figure. Expert witnesses can be costly, especially if they have to testify at trial. An attorney will usually pay for this cost.
Attorneys working on a contingency basis will usually front all or most of these costs. If there is a judgment or settlement in your favor, the attorney will be reimbursed for these costs.
Attorneys also play a crucial role in gathering evidence. As stated above, defamation cases are very fact- specific. An attorney experienced in handling defamation claims will know what types of facts to cultivate in order to prove up your case.
Knowledge of Rules and Strategy
An attorney can also help you create a strategy for your case, as well as help with litigation procedure. For example, you might have other causes of actions in addition to your defamation claim. Some of these claims might even be federal causes of action. However, it might not be in your best interest to plead federal claims because, among other things, federal courts usually require unanimous jury verdicts.
In addition, the rules of civil procedure can be complicated. If you make a substantial mistake, you might be barred from bringing your claim entirely.
After filing your complaint, the next step in the litigation process is discovery. During this stage, both sides exchange information in preparation for trial. An attorney can be particularly helpful in drafting interrogatories (questions the other party must answer in writing and under oath), taking depositions (oral, interviews taken under oath by opposing counsel), etc.
Discovery can be very expensive and time consuming. In most defamation cases, the costs of discovery make up the bulk of the lawsuit costs. Furthermore, discovery requires in-depth knowledge of evidence rules, as well as an understanding of legal strategy.
Settling a Defamation Case
Most civil cases settle. This typically occurs before trial, by way of settlement negotiations between you (or your attorney, if you are represented) and the defendant (or his or her attorney, if represented by one). Additionally, a case may settle through some form of alternative dispute resolution, such as mediation or arbitration. Occasionally, although rarely, the case may settle even before the complaint is filed because of a persuasively written demand letter.
If the parties do not settle, the case will proceed to trial. At trial, both the plaintiff and defendant will present their cases through evidence, including witness and expert testimony. Most likely, you will need an attorney at this stage because trial can be time consuming and procedurally complex. In addition, defamation cases are typically questions of fact, meaning that a jury will decide whether or not the plaintiff was defamed and, if so, the amount of damages. This will require a jury to be selected. An experienced defamation attorney can select a jury that will fairly decide your case.