If you have been libeled or slandered and are considering filing a defamation lawsuit, it can be overwhelming to know where to look, and what questions to ask, when hiring a defamation lawsuit attorney to represent you.
The decision to file a defamation lawsuit should not be taken lightly. It is crucial to hire a defamation lawsuit attorney who has proven experience filing defamation lawsuits in your state, truly understands the goals of the representation, and knows when it is appropriate to explore litigation alternatives to resolve your defamation issue.
At Minc Law, we have extensive experience filing hundreds of defamation lawsuits across 26 states and 5 countries. We know what it takes to remove defamatory content from the internet, identify anonymous defamers, and navigate the ins and outs of this highly nuanced area of law.
In this article, we will explain:
- Common situations when you might need to hire a defamation lawsuit attorney,
- What a defamation attorney does,
- Benefits of hiring a defamation attorney, and
- How to find a defamation attorney who is right for your particular legal issue.
What a Defamation Lawsuit Attorney Does
Defamation law is a highly specialized area of law. Internet defamation is an even more specialized subfield and is often complicated by its intersection with many other areas of law, such as copyright and interactive computer service laws.
A defamation attorney is invaluable in helping you compile evidence, craft legal strategies, and increase your chances of obtaining a successful outcome in your defamation suit. Ultimately, hiring an attorney could save you both time and money.
Who Has the Burden of Proof in a Defamation Lawsuit?
The party that has the burden of proof is the party that has to produce evidence persuasive enough to establish the legal elements of their claim. In a civil case, the plaintiff has the burden of proof. In a defamation case, the burden of proof that the plaintiff must meet to succeed in their case will depend on the plaintiff’s status in society.
Private vs. Public Figures
The distinction between a public and private figure in a defamation case arose in the 1964 Supreme Court case New York Times Co. v. Sullivan.
The Supreme Court emphasized that private figures and public figures should be treated differently. This is because private individuals have a higher expectation of privacy. They are everyday people who have not made themselves part of a public controversy, or at least did not intend to. In other words, they never meant to be in the public eye.
Public figures, though, have made themselves part of public controversy or invited public speculation because of their prominent position. Examples of public figures include:
- Athletes, and other
- Notable figures.
Because of this, there are two standards. Public figures must show that the defendant acted with actual malice or reckless disregard when publishing the defamatory statement. Actual malice means that the defendant published the statement either knowing it was false or with actual malice or reckless disregard of its veracity.
Private figures have a lower burden of proof and must only prove that the defendant acted with ordinary negligence. Ordinary negligence means that the defendant failed to take reasonable precautions that a prudent person in that same situation would have taken.
Sometimes it is obvious if someone is a public figure. For instance, the President of the United States is clearly a public figure. However, sometimes it is not so obvious. For instance, a college professor might not generally meet the definition of a public figure. But if that professor thrusts herself into a heated public debate on a particular subject matter, she may be considered a public figure for purposes of that debate.
What Kind of Lawyer Do You Need for an Online Defamation Lawsuit?
Defamation law is highly nuanced and rapidly evolving. Further, each defamation case is unique and there is no one-size-fits-all solution. Accordingly, you should utilize an internet defamation attorney to file an online defamation lawsuit.
Video: The Process of Filing a Defamation Lawsuit Made Easy
Most attorneys concentrate their practice on a specific area of law, like wills or criminal defense. Just as you would not hire a lawyer who writes your will to defend you in a criminal trial, the same is true for defamation law. If you have been defamed, you would not want to retain an attorney that focuses their practice on conveyancing or wills and trusts. You want to hire an attorney who understands the ins and outs of defamation.
Defamation cases also often touch on other areas of the law, such as copyright, online harassment, stalking, and extortion. Experienced online defamation attorneys can spot these intersections and tailor legal strategies to effectively combat them.
Internet defamation cases in particular require a tech-savvy attorney. Experienced online defamation attorneys need to understand the latest technological and investigational tools, web monitoring services, and the ins and outs of various social media platforms and their reporting procedures.
Finally, you need a lawyer that truly understands your overall goals of the representation.
- Do you only want the defamatory content removed?
- Do you want to obtain monetary compensation for the harm you have suffered?
- Do you want to hold the perpetrator liable for their actions?
- Are there litigation alternatives that would best serve your goals?
- Would it be more appropriate to suppress the content with online reputation management techniques?
Look for an internet defamation attorney who will listen and truly serve your needs.
What Does a Defamation Lawsuit Attorney Do for Their Clients?
The services that a defamation attorney does will depend on what you, the client, are trying to achieve. Common types of services a defamation attorney might perform include:
- Identifying key legal issues and crafting legal strategies,
- Conducting legal research,
- Counseling clients on which legal path to take,
- Negotiating with opposing counsel, including to try to reach a settlement,
- Filing motions and other legal documents, including your initial complaint and responses to the defendant’s papers, and
- Arguing your case in court.
Online defamation attorneys in particular may be required to perform additional tasks. These might include:
- Unmasking anonymous internet trolls;
- Tracking down online defamers, extortionists, harassers, and cyberstalkers;
- Subpoenaing internet service providers, websites, or platforms;
- Preserving potentially fleeting evidence and chronicling detailed timelines of events;
- Establishing working relationships with website administrators and online publishing organizations; and
- Reporting, flagging, and removing unwanted content from the internet.
Benefits of Hiring a Defamation Lawsuit Attorney
Perhaps the two biggest benefits of hiring a defamation lawyer are time and money. You save yourself countless time (and aggravation) by having an expert go through the process for you. You also ultimately may save money, as an experienced online defamation attorney should be able to secure a higher award than you would have on your own.
However, there are many other benefits of hiring an online defamation attorney as well. These include:
Internet Defamation Attorneys Are Experts in a Nuanced Field of Law
Online defamation law is a quickly evolving and highly nuanced field. As mentioned above, defamation law overlaps with many other complex legal fields, including copyright and internet law.
Internet defamation attorneys can quickly spot issues and help bring forward your most compelling and complete case.
Internet Defamation Attorneys Know Technology
Online defamation cases can raise many obstacles. These include straightforward issues, like how to preserve evidence. These also include more complicated issues, like how to identify anonymous defamers, preserve evidence that is no longer live on the web, and conduct metadata tracing and analysis.
Online defamation attorneys possess the technological know-how and relationships to confront these obstacles head-on.
Internet Defamation Attorneys Know the ins & Outs of Online Extortion
Victims of online defamation may also concurrently find themselves victims of extortion. The culprit may agree to remove the defamatory statements in exchange for payment. They may threaten to release more harmful information unless payment is made.
Internet defamation attorneys understand all types of potential online attacks, including online extortion and other forms of internet harassment. They have the tools and experience to help reveal the attackers and hold them liable.
Internet Defamation Attorneys Are Knowledgeable in Content Removal
A financial settlement at the end of a defamation case is useful (article: What is the Average Defamation Settlement?). However, if the damaging content remains online, it can feel like a pyrrhic victory.
Online defamation attorneys know how to remove defamatory content from its source while avoiding drawing unwanted attention to the content. They may also be able to offer ‘guaranteed removals’ from certain types of websites that they remove content from on a regular basis.
Internet Defamation Attorneys Understand What You Are Going Through
Internet defamation attorneys understand the destruction that defamatory online content can have on an individual or business’s reputation (and livelihood). They have seen it all and have handled it all. They know the emotional toll it can take on victims and can offer a sympathetic ear as well as sound legal advice.
How Difficult is It to Win a Defamation Case?
When it comes to “winning” a defamation lawsuit, success to our clients typically means:
- Removing defamatory content from the internet,
- Identifying the anonymous poster behind the content,
- Obtaining a court order to remove content, settlement, or injunctive relief that prevents the defamation from continuing.
- Obtaining some monetary compensation.
If the above is in line with your overall goals, while challenging, we are generally able to achieve a successful outcome for roughly 90% of our clients.
If your objective is to obtain substantial monetary compensation, success is harder to achieve and will typically require more resources. It takes much more time and a larger budget to bring a case to trial, set a case up for substantial settlement, prove defamation damages, and rebut any arguments proffered by the defendant.
What Type of Compensation Can You Get After a Successful Defamation Case?
If you are seeking a monetary award in your defamation lawsuit, you need to prove that you or your business suffered defamation damages as a result of the slanderous or libelous statement. defamation damages. There are two main types of damages available in a defamation case: actual damages or punitive damages.
Actual damages, also known as compensatory damages, reimburse the plaintiff for actual loss, emotional distress, and reputational harm. Damages reimbursing a plaintiff for actual loss arising from the defamation might include:
- Lost business,
- Missed work,
- Medical bills, or
- Attorneys’ fees.
Punitive damages are commonly awarded in defamation lawsuits where the defendant acted with especially malicious or egregious conduct, and to deter future wrongful conduct. As their name implies, punitive damages are awarded to “punish” the defendant for conduct that exceeds the bounds of ordinary negligence.
Damage awards are tied to the individual (or business) and the amount of harm suffered. They are also tied to what the victim wants.
For instance, a victim may only want to have the defamatory content removed and not to be out-of-pocket for the loss. For one victim, this may mean they only need to recover attorneys’ fees to be whole. Another victim may have had to undergo extensive therapy as a result of the defamatory actions. This victim would have additional expenses to be made whole.
Are Defamation Damages Guaranteed?
In any lawsuit, but particularly in a defamation lawsuit, there is no guarantee of the compensation you will receive. Defamation cases are notoriously difficult to prove damages because some damages – like damage to reputation – can be hard to quantify.
Remember, even if a judge does award monetary damages to a plaintiff, there is still no guarantee that they will actually receive the money. The judgment still needs to be enforced. It is possible the defendant might not be solvent or you may otherwise not be able to collect.
Working with an experienced internet defamation attorney can help maximize your chance of recovering damages.
Circumstances in Which You May Need a Defamation Lawsuit Attorney
While there are countless ways and mediums to publish defamatory statements, there are two primary types of defamation: libel and slander. When the false statement is verbally communicated, that is slander. When it is published in a tangible medium, libel is at play.
When Might You Need a Defamation Lawsuit Attorney?
In today’s internet age, libel is most often found online. Below are three defamation examples that might require the need for a defamation lawsuit attorney.
Social Media Defamation
Anyone can post to social media. What they post is not fact-checked before it goes live to hundreds, potentially millions, of people. If that post is false and damaging to someone’s reputation or character, it is defamatory.
Defamation on Shaming Websites
Public shaming websites, like ShesAHomewrecker.com and TheDirty.com, focus on “exposing” purported cheaters, people accused of being sexual predators, or scam artists. Information posted to shaming websites is rarely fact-checked.
While generally the sites themselves cannot be liable for defamation due to protections under a landmark piece of internet legislation known as Section 230 of the Communications Decency Act, the individual posters can – if they can be tracked down.
Frequently, content can be removed even if the individual poster cannot be found.
Common Defamation Issues Faced by Businesses
In addition to the above, businesses face other possibilities for potential defamation. Companies may be subject to defamatory statements from a disgruntled employee. An angry customer may take things too far. Or a business competitor may try to get the upper hand by sinking the competition.
Online reviews are an increasingly important way for consumers to make decisions. While a negative review might hurt the company or employer, it is not defamatory if it is truthful.
However, if someone leaves a fake online review (such as a fake Google review) or posts inaccurate and damaging information, the target could potentially sue for defamation.
Other platforms where businesses may be subject to defamation include scam-reporting websites, employer review websites, and blogs and discussion forums.
What Does a Person Have to Prove to Win a Slander or Libel Claim?
The plaintiff, as the person bringing the defamation suit, has the burden of proof in a slander or libel claim. The plaintiff must prove the following four elements to succeed in a defamation lawsuit:
- There was a false statement published about the plaintiff;
- The false statement was communicated to a third party;
- The false statement was published with “at least negligence”;
- The false statement caused damage to the plaintiff’s reputation.
There Was a False Statement Made About the Plaintiff
A false statement is an untrue statement of fact that is both unsubstantiated and unprotected by the law. It must be made about the plaintiff, meaning a reasonable person must understand that the false statement is about the plaintiff.
The False Statement Was Communicated to a Third Party
Often libelous statements are published to large groups. For instance, a defamatory online statement could be published to millions of people. However, to have a successful claim for defamation, the statement need only be published to one other person besides the defendant and the victim.
The False Statement Was Published With at Least a Negligent Level of Intent
If the victim is a private figure, they must prove that the defendant acted with at least ordinary negligence when publishing the defamatory statement. This means that the defamer did not act with the reasonable caution and care that an ordinary person would have used in the same circumstances.
The False Statement Caused Damage to the Plaintiff’s Reputation
Damage to a person’s reputation can include economic loss. For instance, an actress might lose a role because of public fallout from the defamatory statement. It can also include compensation for physical symptoms or mental distress caused by the defamatory statement.
Additionally, damage to a plaintiff’s reputation might also include expenses incurred to mitigate the harm felt by the statement, such as therapy bills or having to hire an online reputation agency.
What Are the Legal Requirements of a Defamation Case?
The contours of a defamation claim vary from state to state, but the basics remain the same. To successfully succeed in a defamation suit, the plaintiff must consider the following legal requirements and formalities:
- That they have a valid claim for defamation,
- The best court to file suit in,
- State-specific pre-suit filing requirements, and
- Drafting and serving of a comprehensive defamation complaint.
Determine if You Have a Valid Claim
Generally, a plaintiff must prove the following to have a successful defamation claim:
- There is a false statement of fact that was made about the plaintiff
- It was communicated to a third party
- It was communicated with at least a negligent level of intent and
- It caused damage to the plaintiff’s reputation.
Some states have an additional requirement that the statement must not be privileged. For instance, in some states, comments made in the course of judicial or legislative proceedings are generally privileged.
In addition, the lawsuit must be filed within a certain amount of time after the defamatory statement was published. This is called the statute of limitations. The statute of limitations for defamation claims will vary by state but is generally one year from when the statement was made. In the video below, we walk you through the statute of limitations in greater detail, and answer some commonly asked questions we get from clients.
Video: What is the Statute of Limitations for Defamation in the U.S.?
Identify the Best Court to File the Suit
Not every court can hear every case. If you and the defendant both live in Florida, and that is where the defamatory statement was made and where damages were felt, you most likely cannot file suit in Alaska.
Generally, a case may be filed in the state where the defendant lives. However, claims can also be filed based on:
- Where you live or operate,
- Where your customers live, or
- Where you experienced damages.
Depending on your case, you may be able to file in federal or state court. This is a legal question that also involves quite a bit of strategy. This is because some courts may be more sympathetic to plaintiffs than others.
We recommend that you consult with an experienced defamation attorney that is familiar with state-specific filing requirements to best maximize your chances of identifying the most appropriate court and/or jurisdiction.
Comply With All Pre-Suit Filing Requirements
Some states have additional requirements before filing a libel or slander lawsuit. For instance, some states require that the plaintiff demand the defendant make a retraction before suing for defamation.
Make sure to check your state’s laws, or speak with an attorney, before filing to avoid having the case thrown out before it has begun.
Draft, File, & Serve the Complaint
The document that initiates a lawsuit is called a complaint. A complaint is a legal document that has a standard form. You should consult the local rules of the court in which you are filing to make sure that your complaint meets all the requirements.
Once the complaint is drafted, you need to file it with the court within the statute of limitations. Once filed, you serve it upon the defendant. The process for serving a complaint varies by state. Generally, a complaint must be served within 90 days or it will be dismissed. Although extensions are freely given in most cases and in many courts and in many circumstances, timelines can be much longer.
Again, your state may have different substantive and procedural requirements, so it is critical that you consult an experienced defamation attorney.
Hiring a Defamation Lawsuit Attorney
If you decide you do not want to navigate the complexities of U.S. defamation law on your own, the first step is to find a defamation lawsuit attorney. It can feel daunting to find the right attorney while also going through the emotional upheaval of being defamed. We discuss several important considerations and provide resources below.
How Do You Go About Hiring a Defamation Lawsuit Attorney?
There are many national and state-wide resources for finding an attorney who specializes in defamation law. Some respected authorities include:
- Online databases like Avvo, Martindale-Hubbell, Lawyers.com, FindLaw, and Superlawyers.com,
- Your local attorney bar association,
- Your local legal aid society,
- Referrals from family, friends, and co-workers.
Because even those databases and websites can be overwhelming, we have compiled several articles on the best attorneys specializing in defamation law. We understand that our firm is not the best fit for every client’s needs, so we are happy to point you in the right direction even if we cannot help.
Once you have your list of defamation attorneys, you will want to interview each firm or lawyer to make sure they are a good fit. We recommend asking the following questions:
- Do you provide a free consultation? If not, how much does one cost?
- How long have you been practicing law?
- How much experience do you have with defamation law? What is your success rate?
- Have you been the subject of disciplinary action? (Note that you can also find this information on your state’s bar association page.)
- What are your fees and how are they structured?
- What additional costs may be involved beyond your fees (filing fees, postage, copy fees, etc.)?
- How often will I be billed?
- How will you inform me of developments in my case?
We have compiled a comprehensive list of questions to ask when hiring an internet defamation lawyer to help you make the best choice for you. Make sure to download our 33 question checklist to better arm yourself when hiring legal representation!
How Important is a Defamation Lawsuit Attorney’s Experience?
Like doctors, attorneys often focus their practice on a particular field. If you have a complicated legal problem, just as if you had a complicated medical problem, you want to consult with an expert in that area.
It may be that your defamation case is straightforward. If that is the case, a lawyer who infrequently handles defamation cases may provide adequate legal representation. However, in nuanced and quickly changing areas of the law, like internet defamation, it is often preferable to choose a firm or lawyer who handles these types of cases on a daily basis.
Failure to hire an expert in defamation could lead to receiving substandard legal advice. It could also lead to overpayment. This is because you could be paying the lawyer to “learn the ropes.”
An experienced defamation attorney already knows the particularities of the jurisdiction’s rules, can quickly spot what your claims are, and can intuit what the defenses might be. Furthermore, they often already have established relationships that could lead to a quick take-down of materials or resolution outside of litigation.
How Much Does a Defamation Lawyer Cost?
The amount it costs to hire a defamation lawyer depends on many variables, including:
- The lawyer’s billable rate and fee structure,
- How extensive the defamation is,
- Where you will file your defamation suit,
- The availability of evidence to prove your case and the amount of discovery needed,
- How easy it is to identify and find the defendant(s),
- Whether the defendant will contest your allegations,
- The length of the litigation,
- Whether you need to hire local counsel and their billable rates, and
- The kind of legal or non-legal relief requested.
Video: How Much Does it Cost to Sue for Defamation?
At Minc Law, we generally require a $7,500 retainer fee to begin work on a litigation matter.
Based on our law firm’s accounting data, an uncontested defamation lawsuit or one that settles in very early stages is typically resolved for roughly $15,000, or anywhere from $1,000 to $3,000 per month. A contested (and more complex) case typically takes much longer and can cost anywhere from $3,000 to $6,000 per month.
To learn more about Minc Law’s fee structure, please see our post ‘How Much Does a Defamation Lawsuit Cost?’ and our Internet Defamation Services Pricing Page.
How Can Minc Law Help You With Your Defamation Lawsuit?
At Minc Law, we know what it takes to succeed in a defamation lawsuit. We know the ins and outs of defamation law and know how to efficiently and effectively manage your case. Because of our expertise and dedication, we get results where others fail.
We know how to further your best interests and have cultivated the relationships to be able to do so. And we do so in a transparent and ethical manner.
Although we are based in Ohio, we are known nationwide for our knowledge of defamation law. We have litigated defamation cases across over half of the states and in 5 countries. As a result, we have developed relationships with attorneys in most states and can help clients across the globe combat internet defamation.
“This firm delivered exactly as promised! After working with different firms in the past to get a false post removed, I took a chance with this firm and Darcy helped me through the process and explained every step throughout and was honest and upfront about any costs and results. At the end, the post was removed and they delivered. I highly recommend Minc Law and Darcy Buxton!”
H.C. Dec 15, 2020
If you are the target of defamation and want to learn about your options, schedule your initial, no-obligation consultation by contacting a chat representative, filling out our contact form, or calling us at (216) 373-7706.