Suing – or Being Sued – for Defamation in California? Ask Your Defamation Lawyer These 12 Questions

For better or worse, we are living in the era of defamation lawsuits. The ease with which anyone can post content on social media or blogs (often anonymously, using a pseudonym) has emboldened people to speak out about their neighbors, co-workers, family, classmates – even when what they are saying is false and harmful. And today’s charged political climate is only exacerbating the “throwing stones” culture of the times.

What to do if you find yourself, or your business, on the receiving end of verbal defamation (slander) or written defamation (libel) in California? I’ve consulted with hundreds of prospective California defamation clients, and during these conversations, we explore whether there is an actionable defamation claim, the existence and strength of any potential defenses to that claim, whether the wrongdoer can be sued in California state or federal courts (or indeed, anywhere in the US), what “success” looks like for the client, the likelihood and cost of achieving that success, and possible pitfalls – some of which have nothing to do with the law, at all.

Below are 12 questions (in no particular order) that I endeavor to address with my potential defamation clients, and which you should ask any defamation attorney you are considering hiring:

  1. Is the statement at issue barred by California’s statute of limitations?
  2. Is the statement at issue “provably false,” as opposed to opinion, rhetoric, or hyperbole?
  3. Is the statement at issue defamation “per quod” or defamation “per se,” and what is the difference?
  4. Where does the person who made the statement reside, and what does this mean for where a lawsuit can be filed?
  5. Is the person being defamed likely to be deemed a “public figure” or “limited public figure,” and if so, how will that affect the case?
  6. Does actual malice need to be established to prove the defamation claim, and how is that done?
  7. Are there any absolute privileges that may bar the defamation claim?
  8. Are there any qualified privileges that may bar the defamation claim?
  9. Does the defamation matter arise from someone’s exercise of free speech and petition rights, and if so, what could this mean for the case?
  10. Please explain California’s anti-SLAPP statute and procedure to me. If I win/ lose an anti-SLAPP motion, will I be required to pay the other side’s attorney’s fees and costs?
  11. Please talk to me about the “Barbara Streisand Effect” – what are the chances that a lawsuit that intends to repair my damaged reputation will actually harm it further through additional publicity about the statements at issue?
  12. What damages can I expect to recover?

California defamation law has evolved over the years to become incredibly complex, making it difficult for even skilled general civil practitioners to competently evaluate and litigate defamation claims. Even judges often confuse the applicable standards and exceptions for liability, and misapply jurisdictional rules and anti-SLAPP procedure. Getting mired in an appeals process relating to an anti-SLAPP motion can add years – and substantial expense – to a defamation case in California, or other jurisdictions that have adopted similar legislation. If you have been the victim of, or accused of, defamation, you should schedule a consultation with an experienced defamation attorney who has substantial experience litigating defamation or trade libel claims. Our attorneys have such experience, and would be happy to speak with you.

Krista L. Baughman is a partner of Dhillon Law Group, whose practice focuses on defamation, trade libel, First Amendment, and California anti-SLAPP law.