Simply put, the average defamation settlement will depend on the particular facts and goals of your defamation lawsuit. Victims of defamation may have different goals in mind – some may simply want the defamatory content removed, while others may seek monetary compensation for their losses.
While there is no such thing as an “average defamation settlement,” there are numerous driving factors that will determine the right settlement for you, including:
- The nature of the defamatory statements
- If you can prove economic damages with bank statements, tax returns, and other financial records,
- If you can show actual malice to substantiate punitive damages,
- If you use expert witnesses to establish general damages like emotional distress, and
- The credibility of each side’s witnesses and evidence.
In our experience filing and litigating defamation lawsuits across 26 states and 5 countries, we know that there is no one-size-fits-all answer as to the average settlement. Yet, our experience has helped us identify the major factors that influence a defamation settlement, know how to thoroughly document the reputational harm faced by our clients, and maximize their defamation damages.
In this article, we will address the multitude of factors that impact defamation awards, as well as the costs associated with litigation. We will also discuss the types of damages typically available in most defamation claims.
What is the Timeline of a Defamation Lawsuit?
Any form of litigation, whether you are looking at a contested divorce or a defamation lawsuit, is time-consuming. Lawsuits are hardly ever a quick fix for a legal issue.
What is the Average Length of a Defamation Lawsuit?
Before committing to litigation, it is important to take the time to familiarize yourself with the legal process. Find out what will be involved in the slander or libel lawsuit – like what your attorney will need to prove and what documents you will need to file.
You may also need to prepare yourself mentally for the uncertainty of litigation. Even the simplest of lawsuits can be unpredictable, stressful, and costly.
While there is no one-size-fits-all solution to internet defamation, we have found that most lawsuits that we handle resolve within 6–18 months.
What Factors Can Affect the Timeline of a Defamation Claim?
The amount of time a defamation lawsuit takes from filing to full resolution may depend on several factors, including:
- If the case is contested by the defendant,
- If the defamer’s identity is known or needs to be uncovered,
- If there are multiple defendants
- If you are seeking financial damages,
- If the case proceeds to a trial,
- If a court order is necessary, and
- If you file in a jurisdiction that moves more slowly than others.
If you have any questions about filing a defamation lawsuit, make sure to read our comprehensive post by paralegal Dayra Lomba ‘5 Frequently Asked Questions About Internet Defamation Lawsuits’.
What Must Happen in the Timeline of a Defamation Lawsuit?
The Defamation Victim Sends a Retraction Demand Before Filing Suit
Before filing a defamation lawsuit, some jurisdictions, such as Texas and Florida, require a retraction demand. A retraction demand requests that the defamer remove the defamatory content in question and puts them on notice that if they fail to do so, litigation will commence. Defamation retraction demands encourage both parties to resolve their dispute before resorting to litigation.
The Plaintiff Files the Complaint
If the retraction demand is unsuccessful (or not required by the jurisdiction), a lawsuit will be initiated with the filing of a complaint. Complaints must be filed within the appropriate defamation statute of limitations, otherwise, a court may dismiss the case from the outset.
In most states, defendants have 30–60 days to respond to a defamation complaint after they are served.
Both Parties Initiate Discovery
At this point, both parties will then initiate discovery – the process of obtaining evidence in support of each party’s claim. Some states require a pretrial conference before starting discovery, which may add some additional time to the litigation. Once discovery begins, many state courts ask that it is completed within 60–120 days.
Motions of Extension
However, both sides may file Motions for Extension of Time to extend this deadline even further. Also, if your attorney must uncover the identity of an anonymous poster or defamer, this can add more time to the discovery process.
You may also face dispositive motions throughout a defamation lawsuit. Dispositive motions aim to remove some (or all) of the claims asserted in a lawsuit. Some examples of common dispositive motions include a motion for default judgment, a motion to dismiss, and a motion for summary judgment. If successfully argued, a dispositive motion could result in a claim being thrown out before it reaches trial.
The Case Proceeds to Trial
If any of the initial claims make it this far in the litigation process, they can proceed to trial. Yet, a defamation lawsuit could potentially settle at any time during the course of litigation.
In fact, most lawsuits do not go all the way to trial! Fortunately, an early settlement often leads to cost savings, as well as a shorter timeline, so many clients are satisfied with settling the case before trial.
What is the Cost of a Defamation Lawsuit?
Just as the length of time involved in a defamation lawsuit can fluctuate (article: How Long Does a Defamation Lawsuit Take?), the costs of litigation can differ as well. Many of the same factors that impact the length of defamation litigation can also affect the costs of the lawsuit.
Video: How Much Does a Defamation Lawsuit Cost? Cost to Sue for Defamation
The cost of a defamation lawsuit may also become more expensive if you are looking to remove a large volume of defamatory content. Legal fee structures also vary in ways that impact the cost of litigation. Likewise, the cost of retaining local counsel stands to add to the total cost of a lawsuit.
What is the Breakdown of Costs For a Defamation Lawsuit?
Simply put, the following factors may impact the total cost of a defamation case:
- The need to identify an unknown defendant can add costs,
- The type of fee structure established,
- If the defendant contests the case it can increase cost,
- A request for financial damages may increase costs,
- The amount of defamatory content you need removed,
- The urgency of your situation (if there is little time for the lawsuit, costs will likely increase),
- Costs may increase if a court order is necessary for content removal, and
- The cost of local counsel can vary widely (if local counsel is necessary).
For a thorough breakdown of our costs at Minc Law, we recommend checking out our pricing guide for all services. Or you can view our article, “How Much Does a Defamation Lawsuit Cost?” for a more specific breakdown of litigation costs.
How Much Can a Defamation Lawyer Cost?
While we cannot speak to the cost of other defamation lawyers, we can provide information about our fees.
At Minc Law, we typically require at least a $7,500 retainer fee for litigation matters.
Uncontested cases are often resolved for an average total of $15,000 (although this amount is not billed all at once), or roughly $1,000 to $3,000 per month. This number can increase if more discovery is required in cases where the identity of the defendant is unknown.
Contested cases, in our experience, typically cost $4,000–$6,000 a month for the length of the case.
If your Minc Law matter does not involve litigation, hourly non-litigation services typically require a retainer of $3,500 to $4,500 and may cost anywhere from $5,000 to $6,000. However, total costs may be higher or lower depending on a variety of factors.
Additionally, non-litigation guaranteed removal services may range from $1,500 to $2,500 or more.
Defamation Fact: To prove defamation of character, a plaintiff typically must prove that (1) a false statement was made by the defendant, (2) the statement was about the plaintiff, (3) the statement was published to third parties with at least a negligent level of intent, and (4) the plaintiff suffered damages a result of the statement.
What Unexpected Costs Can Appear in a Defamation Lawsuit?
As mentioned above, litigation can be unpredictable. This means unexpected costs can also arise. If, for instance, a platform refuses to comply with discovery requests, you may need to issue subpoenas – adding to the overall cost of a case. You may also need to file motions to compel, particularly if you are dealing with an anonymous poster and the platform refuses to reveal their identity.
These types of unexpected costs are more likely to arise when dealing with a new platform that is not accustomed to defamation lawsuits. When defendants and platforms put up a fight, arguing every step of the way, the case can be more time-consuming and expensive. If an anonymous defamer files a motion to quash in an attempt to remain anonymous, your attorney will need to respond to that (adding extra time and expense).
In a nutshell, the more resistance your attorney faces from the opposing parties, the costlier a case becomes. Experienced internet defamation attorneys often anticipate this type of resistance, but these costs may be unexpected to a client who is not familiar with the litigation process. At all times, we aim to be transparent about costs, including those that might otherwise be unforeseen by clients.
Calculating Damages in a Defamation Case
In any lawsuit, damages are a financial remedy for the harm you suffered as a result of the defendant’s actions. For defamation cases, damages refer to harm to your reputation experienced as a result of defamation.
Damages are an umbrella term for any form of compensation awarded by a court, including reimbursement for lost business, emotional distress, and attorney’s fees.
How Do You Start to Calculate Damages in a Defamation Case?
The best way to begin calculating potential defamation damages is by documenting anything that shows you suffered a loss as a result of the defamation. Screenshot evidence of the defamatory content as well as any messages or comments you received from others telling you that they saw the content.
If you are a business owner facing online defamation, collect evidence of lost profits, declining revenue, decreased customers, and severed partnerships. For individual victims of defamation, consider documenting the loss of any job or job opportunity faced as a result of the false statements. If you had to see any medical professionals, like a doctor or therapist, to process the trauma associated with defamation, document those expenses as well.
Keep an eye out for any negative changes you experience in your life once you discover defamatory statements. Many of these changes can be quantified in a way that could lead to a financial award in your defamation claim.
What Can Add or Subtract the Total Damages in a Defamation Case?
To fully understand what can add to or subtract from the total damages in a case, you must first know the types of damages available. While different jurisdictions allow for different damages, in general, the types of damages available in a defamation case are:
- Actual damages,
- Nominal damages, and
- Punitive damages.
Actual or Compensatory Damages
Actual, or compensatory, damages may be broken down into two types: special damages and general damages. Most defamation plaintiffs strive to recover either special or general damages for the harm suffered, and punitive damages in cases of extremely egregious or malicious conduct.
Special damages refer to economic damages, the kind of harm that most of us think about first when filing a lawsuit. Special damages are awarded to reimburse a defamation victim for the actional economic damages they suffered as a result of libel or slander.
You can prove economic harm and special damages with bank statements, tax returns, and invoices that prove your expenses. Witness testimony, like that of a customer or business associate who avoided your business because of the defamatory content, can also establish special damages.
General damages are designed to compensate victims of libel or slander for emotional distress and reputational harm. These damages may be slightly more difficult to quantify than special damages.
To prove emotional distress, for instance, a plaintiff might call on an expert witness like a therapist to discuss the impact the defamatory statement had on the victim’s mental health.
Reputational damages can be proven by showing that other people saw the defamatory statements in question and believed that they were true. One of the best ways to establish reputational harm is through the testimony of third-party witnesses.
For example, if a defamatory statement accuses you of sexual misconduct or a lack of chastity, proving that third-parties believed these false accusations and that the statements damaged your standing in the community can lead to a recovery of damages.
Nominal damages are often at the bottom of the plaintiff’s list of priorities. When nominal damages are awarded, defendants are often required to pay a trivial sum of money (e.g. $1). However, nominal damages are not always small.
Nominal damages are not intended to compensate a victim for actual losses, but rather show that the plaintiff’s legal rights were violated and potentially lay the framework for future damages claims (such as punitive damages).
Punitive damages are awarded to punish a defendant for their wrongful conduct. In most cases, a plaintiff must prove that the defendant acted with actual malice or reckless disregard when publishing a false statement to be awarded punitive damages.
Put simply, a plaintiff may be awarded punitive damages if they can show a defendant’s behavior was especially egregious.
Proving Damages in a Defamation Lawsuit
The nature of the defamatory content in question can dramatically impact the damages awarded to a plaintiff. False statements that are classified as ‘defamation per se’ (eg. libel per se or slander per se) are often considered more damaging than defamation per quod and damages may be “presumed.’’ This is because statements that qualify as defamation per se are considered so inherently harmful that damages are assumed without further proof.
Defamation per quod, on the other hand, refers to certain types of statements that require a plaintiff to produce evidence and facts showing the defamatory nature of the statements. Furthermore, defamation per quod requires that plaintiffs plead damages with particularity, as damages are not presumed.
Most states recognize four core types of statements as ‘defamatory per se’, these include:
- Statements accusing the plaintiff of having committed a punishable crime;
- Statements imputing that the plaintiff suffers from a loathsome disease (such as an STD or leprosy);
- Statements accusing the plaintiff of having engaged in sexual misconduct or “unchaste” behavior;
- Statements accusing the plaintiff of acting unlawfully or unethically in the course of their profession, occupation, or trade.
The credibility of both sides can also impact the amount of damages awarded. This is especially true if a case makes it to trial, juries and judges consider the credibility of both sides (as well as their witnesses) when deciding an amount to award.
Lost Earnings, Business, & Revenue
A plaintiff might prove that their business has lost profits, clients, and business as a result of defamatory content.
Likewise, business and individual plaintiffs can ask a court to recognize future losses. Individuals may ask the court to consider lost future income from a job you lost or a job offer you did not get because of the defamation.
Business plaintiffs may ask courts to consider their projected earnings before the defamation in contrast to lost revenue that occurred as a result of it.
Plaintiffs should keep thorough documentation of expenses they incur while dealing with the defamation, like medical bills, attorney fees, and reputation management services.
Proving emotional distress often comes down to the testimony of expert witnesses. Of course, a plaintiff’s credibility will also impact whether a judge or jury thinks they are entitled to compensation for emotional distress.
Expert Witness Testimony
Expert witnesses are not only helpful for proving emotional distress, but they can also provide testimony about the current and future financial losses faced by a business.
For example, analysts might provide information about similar businesses to establish just how damaging the defamatory statement or content was. They may also review the business’ financial records to establish the timeline for losses associated with the defamatory content and rule out other causes.
Other Objective Evidence
Plaintiffs may also provide evidence of other losses, like the loss of a company’s intellectual property value.
What Cannot Be Counted Toward the Damages in a Defamation Case?
The defamation damages available to a plaintiff may vary state by state so it is important to have an attorney who understands what is available in your jurisdiction. Moreover, knowing the types of damages available might impact where you decide to file your lawsuit.
In New Jersey, for example, courts require that plaintiffs show they suffered actual injuries before they can recover any damages in a defamation case.
Some elements may also be considered based purely upon the unique facts of a case. For instance, if a plaintiff claims they were not able to go outside for one month after the defamation because of the trauma they experienced, a court might consider that when deciding whether to award damages for emotional distress.
On the other hand, if a victim claims they were not affected mentally by the false statement, a court may choose not to count their statement toward damages for emotional distress.
Also, a court may opt to not consider the amount of actual or compensatory damages when deciding whether to award punitive damages. They may view punitive damages separately (as a punishment for the defendant) rather than consider how the libel or slander affected the plaintiff financially.
How Much Money Can You Expect to Get After a Defamation Lawsuit?
Defamation lawsuits vary greatly – in facts, time, and costs. The amount of money a particular plaintiff is awarded is no different. Defamation lawsuit settlement awards depend entirely on the facts of the case.
What is the Average Payout of a Defamation Lawsuit?
There is no average payout for a defamation lawsuit. Every defamation case is unique and each state has its own rules regarding recoverable damages. Awarding damages is a subjective process that is analyzed by courts on a case-by-case basis.
If your primary goal is to get the defamatory content at hand removed, you may not even want to seek financial damages. Doing so could potentially save you time and money, while still accomplishing your primary goal. This may also be an effective strategy if you know you are dealing with a defendant that does not have the resources to pay for damages.
Moreover, settling a case before trial always entails compromise on the part of both parties. Calculating and proving damages can be especially difficult to the point that some clients would rather not bother.
What Are Some Examples of Unusual Defamation Lawsuits That Greatly Changed the Expected Payouts?
When it comes to settlements and financial damages, what works for one plaintiff may not work for another. In the examples that follow, we will show that some plaintiffs are not always looking for a huge payday and may have other goals in mind.
The best outcome for any defamation claim is one that suits your individual goals, which may not be the same result others are seeking. In this regard, there is no such thing as an “average” defamation settlement, but rather a set of factors that will determine the right settlement for you.
Gibson’s Bakery v. Oberlin College
In Gibson’s Bakery v. Oberlin College, an Ohio court awarded the owner of Gibson’s bakery millions in damages, an unusually high award for the state. The case arose after an Oberlin student attempted to steal bottles of wine from the longstanding town bakery. When the bakery’s clerk, Allyn Gibson, said he was going to call the police, the student struck Gibson and ran into the street. An altercation ensued with several other students joining the fight.
A day later, students and faculty gathered in a local park, protesting the incident as racial profiling, and claiming that Gibson used excessive force with the students. The college issued a statement decrying the bakery’s racial discrimination and boycotting the bakery.
Ultimately, the jury decided that the Gibson family and bakery were deserving of $43 million in damages (including $33 million in punitive damages). Oberlin appealed the verdict and both sides are currently awaiting a decision from the 9th District Court of Appeals in Akron, Ohio.
Sean Penn v. Lee Daniels
In 2015, Hollywood creator and director, Lee Daniels, likened actor Sean Penn to another actor accused of domestic violence when speaking with The Hollywood Reporting. Specifically, Daniels claimed that actor Terrence Howard “ain’t done nothing different than Marlon Brando or Sean Penn…” implying that Penn was also a domestic abuser when in a relationship with singer Madonna.
Penn promptly filed a defamation suit for $10 million in damages, but later withdrew his complaint when he and Daniels settled. Not only did Daniels issue a sincere apology, but he also agreed to make a sizable charitable donation. Of course, this was not a huge payday for Penn since the proceeds went to charity, but Penn appeared to be satisfied with the outcome.
Anagnost v. The Mortgage Specialists
In a verdict that became the largest award in New Hampshire’s history, three professional plaintiffs were awarded $274.5 million in damages. Anagnost v. The Mortgage Specialists, N.H. Supreme Court, 2018, was the result of Michael Gill’s (owner of The Mortgage Specialists) purchase of electronic billboards to accuse the 3 plaintiffs of “drug dealing,” and “extortion.”
Gill reached this conclusion because the plaintiffs donated to a nonprofit drug and alcohol treatment center. Unfortunately for Gill, this was not his first attempt at targeting other businessmen, politicians, lawyers, and judges on electronic billboards.
A New Hampshire judge found that Gill’s statements falsely accusing others of serious crimes showed, “ill will, evil motive, intent to injure and wanton disregard” for the rights of others. It is likely the gravity of Gill’s statements, as well as his pattern of malicious advertising factored into the record-breaking award.
How Minc Law Can Help You Get the Most Out of Your Defamation Lawsuit
At Minc Law, our goal is to help clients navigate the challenging landscape of internet defamation law. We empower our clients to identify their own goals, which may even involve looking at litigation alternatives, and have extensive experience removing defamatory content from the internet.
“My experience with Minc Law was amazing. They were prompt and efficient in helping remove material I needed taken down. Dorrian, my attorney, kept me updated regularly and explained every thing she was going to do before she did it. I would recommend them over and over again, especially Dorrian!”
MK, June 8, 2021
Together, we can preserve evidence to maximize your chances of achieving a defamation settlement that is appropriate for your specific situation.
To learn more about defamation lawsuits, contact our office for a free no-obligation consultation by calling (216) 373-7706, filling out our contact form, or speaking with a Chat Representative.