MORRIS & STONE, LLP
Southern California's Premier Slander/Libel/Defamation Law Firm
Seven Steps to Stop Slander
"Someone is slandering me. What can I do?"
This is the question we get asked every day. Keep reading, and we'll explain exactly what you can do. This should not be taken as legal advice, since every fact pattern is different, but this will give you a good overview of what it will take to stop someone from slandering you.
First, you need to understand the terminology.
When someone "publishes" a statement about you to a third party, that falsely accuses you of immoral, unethical or illegal conduct, that is defamation. "Publish" just means to communicate. Obviously someone cannot defame you by just having bad thoughts; the information has to be communicated verbally or in writing. If the person verbally communicates the false statements, then that is slander and you are on the right website. If the person communicated the false statements in writing (such as in a letter or on the Internet), the that is libel, and you need to go to WhatIsLibel.com for information specific to that form of defamation.
How to sue for slander.
For purposes of our discussion, we will assume you have already tried to resolve the matter informally. Perhaps the person who is slandering you just misinterpreted something they heard, or got some bad information. Explaining the facts might stop the slander. If a little stronger measures are necessary, then a cease and desist letter from an attorney might do the trick. Only you know the circumstances well enough to know if these steps might be sufficient.
If the matter cannot be resolved informally, then you might have to sue. Here are the seven steps to stopping slander.
Step 1 -- Determine exactly what is being said.
Before you can bring an action or even send a cease and desist letter, you must know exactly what is being said about you. Without that information, it is impossible to know if what is being said is defamatory.
We sometimes get calls from potential clients who are ready to file a lawsuit based on the way people are treating them. For example, people at work may be treating them differently. No one invites them to lunch anymore, and they were passed over for a promotion when they were clearly the best candidate. The caller is convinced that someone slandered them, and that is the cause of the change in treatment. They are ready to file a lawsuit for slander, perhaps believing that the action can then be used to determine exactly what was said about them.
It doesn't work that way. You can't file a suit based on assumptions or speculation. Doing so would expose you to an action for malicious prosecution or an anti-SLAPP motion. Unless you have a witness who can tell you precisely what was said, you will not be able to pursue an action for slander. Which leads us to the next step.
Step 2 -- Find a witness who will testify to what was said about you.
It is not enough to find someone who will tell you what was said about you, you also need someone who will testify to what was said.
To prove any case, you must present evidence. You cannot testify to what you "heard" someone said about you, because that would be inadmissible hearsay. For the same reason, you can't prove your case with a witness who can only testify to what he heard was being said about you. You need a witness who heard it direct from the horse's mouth (or here, the defendant's mouth).
Sadly, this step might be the death knell for your case. As you can imagine, people are very reluctant to get involved in legal actions, so unless the witness is a friend or a very honorable person who wants to do the right thing, you will have a very hard time finding someone who volunteers to be a witness in your case.
Often a slander witness's biggest fear of being a witness is that they believe they may end up being sued for what they say in court. In reality, there is an absolute privilege that makes it impossible to sue anyone for something they say in court. Your witness cannot be successfully sued for the testimony they provide, but most people won't want to take the chance no matter how clearly you explain.
Step 3 -- Get the witness to put it in writing.
If you find a witness who agrees to testify to the slander, test the resolve of that witness by asking him or her to provide you with a written statement of what was said. When you confront someone and ask them if they will testify to the slander they heard, they will often answer yes just to put you off. But when you ask for a written statement, that makes it real. If they won't provide a written statement, then you know that you don't have a good witness.
Some callers want to file the action and then bring the recalcitrant witness in and take their deposition. That is generally a really bad idea. If someone has indicated to you that they do not want to be a witness (by refusing to provide a written statement), they will not be happy when you drag them in for a deposition. Even if they take to heart the oath to answer the questions truthfully, they will likely give very unconvincing testimony.
Step 4 -- Determine if the statements were defamatory.
If you found someone who was willing to tell you just what was said about you, and who is also willing to put it in writing, then you are on your way to a winning case! But first you need to make sure the statements were actually defamatory. Just because someone says something false about you, that does not mean it is slanderous. If someone says you drive a red car, when you actually drive a blue car, then they have told a lie about you, but it is not slander because there is nothing wrong with driving a red car. Remember, the false statement must accuse you of illegal, immoral or unethical behavior.
Also, the statement must be verifiably false, and not a matter of opinion. For example, in a recent case out of New York, someone referred to a model as a "skank". The model sued for defamation, but the case did not survive. Calling the model a "skank" certainly implied that she was immoral, but there is no way to verify whether or not the statement is false, because it is not subject to a precise definition.
You must also be aware of the many "privileges" that apply to speech. We charish free speech in America, and in many situations what someone says is absolutely protected, no matter how false or vile. We already discussed that anything said in court is protected, and that is also true of anything said at a city council meeting. For a detailed discussion of all the elements of a defamation claim, and the various privileges, please visit WhatIsDefamation.com.
Step 5 -- Decide what you want to achieve.
If you've made it this far, then you have a strong slander case, but you must decide what you want to achieve. This may be the most important step, because as Yogi Berra said, “If you don't know where you are going, you'll end up someplace else.”
If your goal is to just stop the slander, that is a far easier goal to achieve than if you want to sue for damages. A defendant who knows (or can be shown) that he is slandering you would be foolish to spend time and money defending against an action, just to continue slandering you. Just bringing the action will probably be sufficient to motivate the defendant to stop the slander, give you a letter of apology, or whatever it is you want to accomplish.
Alternatively, if you want to sue for damages, the defendant will be far more motivated to fight the action, and that will increase the costs on both sides. Also, consider very carefully whether you can prove any damages. There are two types of damages in a slander action. There are actual damages, and presumed damages.
Actual damages are just what the name implies -- the actual damages you suffered as a result of the slander. For example, say you are a real estate agent, and you were just about to earn a commission from the sale of a home, but the buyers decided not to use your services because of the false statement they heard about you. The value of that commission would be an actual damage.
But actual damages cannot be speculative. Using the same example, if you are going to claim you lost that commission, you'll have to prove it. The buyers would have to testify that but for hearing the slander, they definitely would have used you to buy the home.
The other type of damages, presumed damages, are the damages that are presumed to naturally flow from the damage to your reputation. The law recognizes that a person's reputation has worth, and if something is done to damage that reputation, the law requires that the judge or jury award damages to compensate for that damage, even if it can't be determined with precision. However, the judge or jury are also instructed that while they must award damages, those damages can be nominal.
Step 6 -- Decide how you want to achieve your goal.
You can of course hire an attorney to pursue your legal action for slander. If the slander was particularly reprehensible and will result in an award of damages, the attorney may take the case on a contingency basis, taking a percentage of whatever damages are recovered. If the damages are not significant, then the attorney will have to charge you by the hour or on a flat fee basis.
Alternatively, you may want to consider avoiding the cost of an attorney, and pursue the case in small claims court. In California, an individual can sue for up to $10,000 in small claims court. Go here for a detailed discussion of how to pursue a case in small claims court.
Step 7 -- Call Morris & Stone at (714) 954-0700.
For help in determining whether you have a viable slander action, and how best to proceed, call the defamation attorneys at Morris & Stone for a free telephone consultation.
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Information on Defamation
For more information on defamation in general and Internet defamation in particular, visit our Internet Defamation Blog. Here are the most recent articles: