If you think you might have a defamation claim (i.e., a libel or slander claim), you might be wondering what goes on in a typical defamation case. This article will walk you through the standard stages of a defamation lawsuit. (For more in-depth information, check out all of Nolo's Defamation, Libel & Slander articles.)
Meeting With and Choosing a Lawyer
A defamation lawsuit isn't the kind of legal action that you want to try handing on your own, so your best first step is choosing the right lawyer for your case.
You should certainly talk to a number of lawyers over the phone, and you might want to meet several of them. You should be aware that, in most cities, there are very few if any lawyers who specialize in defamation cases. If you can’t find a lawyer in your area who specializes in defamation cases, you should look for a lawyer who is a good litigator and who has had a good track record of success in past cases. You should also look for a lawyer who is willing to take your case on a contingency fee (percentage of the recovery) basis.
In general, you can feel comfortable asking a personal injury lawyer to take a defamation case because personal injury lawyers are used to taking cases on a contingency fee basis, and a defamation case is not too different from a regular personal injury case. Ultimately, you are claiming that the defendant did something wrong and injured you.
After you choose a lawyer and sign a fee agreement, the case will begin.
Your Lawyer Will Investigate the Case
The first thing that a good lawyer will do is thoroughly interview you about what happened. He/she will want to know the following things:
- exactly what the defendant said or wrote about you
- who the defendant said it to
- how you heard about what the defendant said
- who all the witnesses will be
- what your damages are, and
- what your proof of damages is.
If the case is a libel (written defamation) case, the lawyer will want a copy of what the defendant wrote about you.
Any good lawyer will want to make sure that they know everything that you know about what happened. Then, they may want to talk with, or have an investigator talk with, any of the witnesses who will agree to cooperate with you.
After the lawyer has completed their investigation, they will meet with you to give their opinion about whether you have a viable defamation case. Many times the lawyer can determine that there is no case and will deliver the bad news to the client very early on.
Your Lawyer Will Consider Making Demand and Negotiating
Many personal injury and defamation cases can be settled before a lawsuit is ever filed. If the lawyer thinks that you have a case and that there is a chance of settling the case, he/she will send a formal demand letter to the defendant. Otherwise, the lawyer will file a lawsuit.
The Lawsuit is Filed
The filing of the lawsuit starts the clock running on when the case might get to trial. Every state’s pretrial procedures are different, but generally it will take between a year and a half and three years after the lawsuit is filed for a defamation case to get to trial.
The Discovery Process
In most courts, the judge will issue a scheduling order shortly after the lawsuit has been filed and the defendant has filed an answer. The scheduling order sets up the timeline for the remainder of the litigation. Most significantly, the scheduling order sets up a deadline for completing discovery.
The discovery process is the procedure in which each party investigates what the adversary’s legal claims and defenses are. They send interrogatories (a fancy word for questions) and document requests to each other, and take depositions of all of the relevant witnesses in the case, generally beginning with the plaintiff and defendant.
This process can last up to a year, depending on the scheduling order, and it often requires the parties to go back to court to get the judge’s help. In many cases, one or both of the parties is dissatisfied with the other party’s responses to the interrogatories and/or document requests and so files a motion to compel further responses. The judge will hear each side’s arguments and then make a decision. This can happen many times during the course of a lawsuit, depending on how combative the parties and their lawyers are.
Mediation and Negotiation
As the discovery period ends, the lawyers will generally start talking about settlement. The vast majority of all lawsuits get settled before trial. Sometimes the lawyers can settle a case just by talking amongst themselves, but, in other cases, they will go to mediation. Mediation is a process in which both clients and both lawyers go in front of a mediator to try to settle the case. Almost all courts now require the parties to go to mediation before trial.
Learn more about Settling a Personal Injury Case.
A defamation trial could last anywhere from a day to a week or more, depending on how many witnesses are necessary to prove your case.
Unfortunately, just because a lawsuit is scheduled for trial does not mean that the trial will actually occur on that date. Trials often get rescheduled because of the judge’s schedules. If your trial gets cancelled, you should not automatically assume that the judge is against you or the defense attorney has done something unethical. Postponements of trials happen all the time. Depending on the court, your trial might get rescheduled two or three times.