Defamation is all about making false statements, whether it is for a business or an individual.
Let’s take an example. If an employer, which in this case would be a former employer, states something with an impression that the facts are true, it’ll be considered as defamation. And if you can prove your point, you’ll not only be awarded damages for financial losses but also for the emotional distress that you went through during this time.
But there is a requirement of filing a defamation case. And that is, “there must be some serious harm involved” if you want to proceed with suing your employer.
Why? It is because, in most of the trivial cases, the law suggests to stop defamation cases if there is no serious harm involved quickly.
Since the matter can be tricky or might reduce your chances of getting a better outcome, here is what you should know.
Defamation Case: The Basics
Although defamation laws vary in different states, some rules are widely accepted. So, if you think you have been wrongly accused of something you didn’t do, here is how you must proceed.
Elements Included in a Defamation Statement
If you’ve been defamed, be it a slander, or a libel, your statement must contain all the elements, such as published, false, injurious, and unprivileged. Let’s understand all these statements one by one.
Statement: It comprises the wrong statements that are either spoken, written, gestured, or pictured. It goes without saying that written statements hold more providence as compared to spoken ones. Even judges, insurance companies find libel more worthy than slander.
Published: It means some third party was involved when the statement was being issued. It doesn’t necessarily mean that it was published somewhere. It simply means that the matter was made public via television, radio, speeches, gossip, or loud conversations.
The statement must be false: It goes without saying that if that’s not the case, it won’t be considered damaging, even if the comments are mean or emotionally damaging.
Injurious: Since the whole point of filing a defamation case is all about taking care of one’s reputation, the statements must impact your reputation for you to settle through the court.
Offending statements must be unprivileged: Under this part, you won’t be able to sue anyone if they make a false statement.
Now that you have an idea of what’s all included in a defamation suit, here’s a look at how a defamation case will proceed.
Defamation Case: The Procedure
Ideally, the first step would be choosing the right lawyer. For those who try to handle it on their own, I would suggest taking the other route.
Before you start finding the defamation lawyer for yourself, you must be aware that only a few lawyers specialize in these cases. You must find a lawyer who understands your problem and the law equally to increase your chances of winning the case.
Once you lock the lawyer of your choice, the next step is to investigate the case.
i). Thorough Understanding of The Case Details
A good lawyer will interview you about every aspect of your case. He/She would inquire about:
- What were the exact statements said or written about you?
- Who was it shared with?
- How did you get to know about the statements?
- Were there any witnesses?
- How did it impact you?
- Is there any proof of the damages?
In short, the lawyer would make sure to know everything before pressing any charges. After that, they will try to talk with the witnesses or ask an investigator to do that. After that, they will evaluate further steps.
ii). Making Demands or Negotiations Before Filing The Lawsuit
Once the attorney goes through all the aspects of your case, he/she will make you understand the next steps.
For example, they might ask you to settle before the filing of a lawsuit. In that case, the lawyer will issue a formal demand letter to the defendant. Otherwise, they will proceed with the filing of the lawsuit.
iii). Filing a Lawsuit
The pretrial procedures of every state are different. But, ideally, it can take anything between a year to three years to settle a defamation lawsuit once it is filed and goes to trial.
iv). Discovery Process
Once the lawsuit is filed, the judge will issue a scheduling order where the defendant has to file an answer. This scheduling process will set up a timeline for the remaining part of the litigation. In this timeline, each party will discover the legal claims and defenses. This will also include document requests to either party.
Other than that, all witnesses will be asked to give their statements. It can last a year, depending on the scheduling order timeline. Since no party agrees to the claims made by one another in most cases, the judge hears both parties and eventually decides.
v). Making Demands or Negotiations After Filing The Lawsuit
Once the discovery phase ends, the lawyers start talking about the settlements. While in some cases, the lawyers settle the case by themselves.
In other cases, they will go for medication. In this, the lawyers try to settle the lawsuit with a mediator appointed by the court.
vi). The Trial
A defamation trial can take anything from a day to a week to prove your case.
It must be noted that just because the trial date is set, the possibility of the trial happening on the same date is not always guaranteed. There might be rescheduling two or three times.
Having the right legal representation will help you go through the entire process seamlessly.
Also, with so many changes occurring in the Australian defamation law, hiring someone who is updated on all the Model Defamation Provisions will be even more beneficial for you.
For instance, there is a requirement of a “new serious harm,” and amendments in some types of cases with reputational damages. And many more. So, make sure your attorney is well-versed with all the defamation laws. It will increase your chances of winning the case even more.
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