How Many Defamation Cases Go to Trial?

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Many individuals confronted with libel or slander and are considering filing suit ask, “How many defamation cases go to trial?” If you are dealing with defamation, it is important to understand the trajectory of these cases from start to finish so you can better understand the legal process and potential outcomes.

Based on our experience, fewer than 5% of defamation cases make it to trial, a statistic that might come as a surprise to many. This low percentage is influenced by several factors, including the likelihood of early dismissals favoring the defendant, potential counterclaims, and financial considerations. Also, parties involved in defamation disputes (as with most civil litigation) typically opt for mediation or settlement out of court, to avoid the unpredictability and expenses of a trial.

At Minc Law, our extensive experience litigating defamation cases across the U.S. and the globe has taught us that each scenario is unique, and there is no one-size-fits-all answer when it comes to predicting how a case will play out. We excel in assessing defamation claims, unmasking anonymous defamers, creating effective litigation strategies, and exploring alternatives to litigation. This helps us guide our clients before filing a defamation lawsuit, ensuring they make informed decisions tailored to their specific circumstances.

In this article, we explain the factors that influence whether a case goes to trial and discuss some of the realities of defamation litigation.

Legal Definition of Defamation, Libel, & Slander

Defamation refers to the publication of false statements to others that negatively impact a person or organization’s reputation. For a defamation lawsuit to hold ground, plaintiffs must establish four crucial elements:

The defendant made a false statement about the plaintiff,
They shared the statement with a third party,
They had negligent or malicious intent, and
There was demonstrable harm to the plaintiff’s reputation.

Typically, defamation is categorized into two types: libel, which involves written statements, and slander, referring to spoken statements.

What is the Definition of Libel?

Libel is defined as a published false statement that is damaging to an individual or entity’s reputation. It is defamation in a written or preservable form.

What is the Definition of Slander?

Slander involves making a false, spoken statement that damages a person or entity’s reputation. It is the counterpart to libel, focusing exclusively on oral defamation.

This difference between libel and slander is crucial as it influences how defamation is proven in the pre-trial stage, a critical step in a defamation case.

How to Prove Defamation (Pre-Trial Stage)

Before a defamation case can progress toward trial, plaintiffs must assess whether the claim is viable. This involves reviewing the elements of defamation and determining whether they can be successfully proven in court.

It is also essential to evaluate the strength of any potential defenses the defendant might have because they may lead to an early dismissal of the case.

Elements in a Defamation Claim

False Statement of Fact About the Plaintiff

The cornerstone of any defamation claim is the presence of a false statement of fact made about the plaintiff. This element distinguishes defamation from opinions or subjective statements, which are not legally actionable. The statement must be demonstrably false and not merely an exaggerated version of the truth.

Establishing the falsity of the statement is often the first and most critical step in a defamation lawsuit.

Communication to a Third Party

For a statement to qualify as defamatory, it must be communicated or published to someone other than the plaintiff. This element underscores the essence of defamation: spreading false information that harms reputation.

It is not enough for the statement to be made; it must be heard, seen, or read by at least one other person. This can occur through various mediums, including online platforms, public speeches, or printed materials.

Negligent Level of Intent

The plaintiff must demonstrate that the defamatory statement was made with at least a negligent level of intent. This means the person making the statement did so with a disregard for the truth or without taking reasonable steps to verify its accuracy.

In cases involving public figures, the standard is often elevated to ‘actual malice,’ meaning the statement was made with knowledge of its falsity or with reckless disregard for the truth.

Statement Was Unprivileged

In some states, defamation claims must also consider whether the statement was unprivileged. Privileged statements, such as those made in legal proceedings or certain governmental contexts, are generally immune from defamation actions.

This legal protection aims to encourage candid and necessary communication in specific settings without the fear of a defamation lawsuit.

Damage to the Plaintiff’s Reputation

Finally, the plaintiff must prove that the false statement caused damage to their reputation. This harm can manifest in various forms, such as financial loss, personal distress, or harm to professional standing.

In some cases, certain statements are considered so harmful that damages are presumed, known as defamation per se. However, typically, plaintiffs need to demonstrate specific negative consequences they suffered as a result of the defamatory statement.

For further reading, please see our comprehensive guide explaining the legal doctrine of ‘slander per se’.

Common Defenses to Defamation

It is important to understand the common defenses to defamation before filing a lawsuit, as these defenses can significantly impact the viability or outcome of a case.

Truth

The defense of truth is perhaps the most common: if the statement is true or substantially true, it cannot be defamatory. This defense underscores the principle that defamation law is not meant to punish individuals for speaking the truth, even if it is damaging.

In defamation cases, the burden often falls on the defendant to prove the truthfulness of their statement.

Opinion

This defense applies when the statement in question is presented as an opinion rather than a fact and thus cannot be proven true or false. Opinions are protected under the First Amendment, recognizing that personal viewpoints, even if negative or controversial, are an essential part of discourse.

Privilege

Some statements are protected under the law due to their context or the forum in which they were made. This includes statements made in legal proceedings or on matters of public interest. Privileged speech is deemed so important to society that it is protected from defamation claims.

Statute of Limitations

Defamation claims must be filed within a specific time frame after the alleged defamatory statement was published. The statute of limitations ensures that claims are brought while evidence is still fresh and relevant, and failure to file within the designated time typically results in a dismissal.

Statutes of limitation are typically one or two years but vary by jurisdiction, and are a critical factor in determining whether a case can proceed. Note that the majority of jurisdictions do not extend the limitations period to when the plaintiff learned of the publication (known as the “discovery rule”).

Statutory Defenses

Some defenses are specifically provided for by law, such as Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes. These laws are designed to prevent people from using courts to intimidate others who are exercising their freedom of speech.

Other Lesser-Known Defenses to Defamation

There are also more obscure defenses that may come into play, such as the libel-proof plaintiff doctrine, which applies to plaintiffs whose reputations are already so tarnished that a defamatory statement would not further damage their standing. These defenses are less commonly used but may be applicable in specific cases.

Previous Legal Cases & Precedent

The principle of stare decisis means that outcomes of other legal cases, particularly those in the same jurisdiction and with similar circumstances, can determine how the court rules on issues in your case. These legal precedents establish benchmarks, offering both plaintiffs and defendants insight into the potential outcomes of their own cases.

When there is a trend of rulings favoring one side in comparable cases, it can significantly influence the strategic decisions of the parties involved. This trend can either discourage or encourage litigation, depending on the side one is on. Additionally, attorneys often rely on these precedents to guide their advice and litigation strategies.

Filing a Defamation Lawsuit

When considering a defamation lawsuit, the initial filing process is critical. This stage involves a detailed assessment of the claim’s merits, exploring alternative dispute resolution (ADR) options, and preparing for potential legal challenges. It is at this juncture that many defamation cases are filtered out, with the vast majority not progressing to trial.

During the filing stage, defendants often employ various strategies to challenge the lawsuit, including motions to dismiss. These legal maneuvers are designed to test the strength and validity of the plaintiff’s case. Successfully navigating this phase requires thorough preparation and a strong foundational case. The outcome of these preliminary challenges often determines whether the case has the potential to go to trial.

This phase not only sets the stage for potential court proceedings but also serves as a litmus test for the overall viability of the defamation claim.

Strength of Evidence & Proving Damages

When filing a defamation lawsuit, it is not enough to simply demonstrate that a defamatory statement was made. You must prove that the statement caused actual, tangible harm. Statements that are offensive but do not result in measurable damage typically do not constitute actionable defamation.

However, if the false statement has led to concrete repercussions, such as lost job opportunities, reduced business revenue or sales, costly efforts in damage control like public relations campaigns, or even mental distress and physical symptoms, your case becomes significantly stronger.

The availability and strength of evidence and witnesses are crucial in this context. If there is a lack of documentation or evidence to support your claims, the probability of the case advancing to trial decreases.

Public Interest & Media Attention

The decision to file a defamation lawsuit should be considered carefully due to potential unintended consequences. Sometimes, attempts to suppress information can inadvertently lead to greater publicity, in a phenomenon referred to as the Streisand Effect.

Filing an ill-advised or meritless lawsuit may carry the risk of amplifying the very statement you wish to challenge, drawing more attention to it, regardless of the lawsuit’s outcome.

For public figures, the decision is even more complex. The burden of proof is higher, requiring the demonstration of ‘actual malice’ – that the defamatory statement was made with knowledge of its falsity or reckless disregard for the truth. Overcoming preliminary legal challenges might not fully restore a public figure’s reputation in the eyes of the public.

Additionally, the potential of a trial and jury verdict can be a double-edged sword. While some may see it as an opportunity to clear their name, the risks involved, including increased media scrutiny and the unpredictability of a jury, might deter others. The impact of a public trial on personal and professional reputation must be weighed against the potential benefits of clearing one’s name.

Where to File

Choosing the right court to file a defamation lawsuit might seem straightforward, but it is often more complex than anticipated. The key consideration is jurisdiction: which court has the authority to hear your case? This decision hinges on several factors, including where the parties are located, where the defamation occurred, and where the damages were experienced.

In some cases, the choice of court is clear-cut. In others, you might have options across multiple jurisdictions. This flexibility can be advantageous; for example, state courts are often more favorable to plaintiffs than federal courts, and certain states may have more beneficial defamation laws, like longer statutes of limitations or no Anti-SLAPP laws.

Availability of Alternative Dispute Resolution (ADR)

ADR methods like mediation and arbitration often serve as effective substitutes for litigation. In fact, many courts require some form of ADR before allowing a civil case to proceed to trial.

Settlement typically involves compromise from both sides. For instance, the plaintiff might accept a lower monetary settlement than initially sought or agree to partial content removal instead of complete retraction. It is important to recognize that settlement agreements rarely grant all the desires of either party.

Aside from traditional ADR methods, several other litigation alternatives exist that might suit your defamation situation. These include:

Negotiating directly with website owners for content removal,
Making editorial requests to news outlets,
Reporting violations of website terms of service,
Sending DMCA takedown notices,
Writing cease and desist letters, or
Using online reputation management services.

Each of these options offers a different approach to resolving defamation disputes outside the courtroom, potentially saving time, resources, and further reputational harm.

Comply With Pre-Suit Requirements

Before filing a defamation lawsuit, it is essential to be aware of the pre-suit requirements that some states mandate. These requirements vary from state to state and are designed to offer an opportunity for resolution before a case goes to court.

For instance, in Texas, the law requires plaintiffs to make a defamation retraction demand before suing for libel.

Neglecting these pre-suit requirements can cause your case to be dismissed, or you may face restrictions on the damages you can recover.

Draft & Serve The Complaint

After fulfilling the necessary pre-litigation steps, the next phase is drafting and serving the legal complaint. A complaint formally starts the litigation process and lays out the basis of your lawsuit against the defendant.

Typically, a complaint encompasses six key components:

Identification of the parties involved in the lawsuit,
The jurisdiction and venue of the court,
Factual allegations underlying the defamation claim,
The specific claims for relief,
The type of relief being sought, and
The nature of the trial requested.

Once the complaint is filed with the court, the next step is serving the complaint to the defendant. This process, known as service of process, ensures the defendant is properly notified of the lawsuit and has the opportunity to respond.

Service requirements vary by court but generally involve delivering a copy of the complaint to the defendant or their representative within a specified timeframe, usually 20-30 days after filing. This can be done through a local sheriff’s deputy or another eligible individual who is not part of the lawsuit.

For further reading, please see our comprehensive articles ‘How Much Does a Defamation Lawsuit Cost?’ and ‘Is It Worth Suing For Defamation?’.

Factors That Influence the Chances of a Defamation Case Going to Trial

The journey of a defamation lawsuit is shaped by numerous factors. The progression of your case will often hinge on the strength of your claim. However, the filing of the lawsuit and meeting the elements of defamation is just the beginning.

Once a lawsuit is officially filed, several factors can influence whether the case will reach trial. Key among these is the defendant’s response; they may file motions to dismiss the lawsuit based on various grounds, including the defenses previously outlined. The success of these motions can either propel the case towards a trial or result in an early dismissal.

Another concern is the willingness of the parties to settle. Often, both sides may prefer to avoid the uncertainties and expenses of a trial, leading them to negotiate a settlement.

Will the Defendant Succeed on a Motion to Dismiss?

In defamation lawsuits, the period following the filing is often marked by a series of legal and procedural hurdles. These include motions to dismiss, Anti-SLAPP motions, and motions for summary judgment. Each of these legal tools asks the court to dismiss the claim before it reaches the trial stage.

If your case withstands these challenges, the dynamics of the lawsuit can shift significantly. Surviving these initial motions often indicates the strength and validity of the defamation claim. As a result, the likelihood of reaching a settlement increases. Defendants, recognizing the potential risk of facing damages or an unfavorable judgment, may become more inclined to negotiate.

A plaintiff’s ability to overcome these early obstacles can bolster your position, potentially leading to a settlement that meets most, if not all, of your goals.

Plaintiff’s Goals

Your primary goals can also influence whether your case goes to trial. Unlike many civil lawsuits where financial compensation is the main objective, defamation plaintiffs often have different priorities.

Many victims of defamation want to restore their reputations rather than obtain monetary damages. This goal is often accomplished through injunctive relief, such as orders requiring the removal of defamatory material and preventing the publishing of future harmful statements. If the defamer is anonymous or uncooperative with non-litigation options, a lawsuit might be the only viable route to achieve these outcomes.

In cases where financial recovery is the primary aim, reaching a settlement can be more challenging. Unlike with many other tort claims, insurance companies typically do not defend or indemnify for defamation claims and defendants are often less willing to agree to monetary settlements without a court order. However, they might be more willing to remove defamatory content as an alternative to litigation.

For many, a defamation lawsuit is not just about the tangible outcomes but also about vindication. The emotional and psychological impact of defamation can drive individuals to pursue legal action, seeking to correct false narratives and re-establish credibility. This deep-seated need for justice can be a compelling reason for plaintiffs to push for a trial despite potential costs or risks, especially when alternative resolutions do not fully address their core concerns.

For further reading on anonymous defendants, please see our comprehensive resource explaining ‘How to File a John Doe Lawsuit Over an Anonymous Review’.

The Defendant’s Willingness to Settle

A defendant’s willingness to settle can be shaped by several factors, each influencing the direction the litigation takes.

Defendants may settle to avoid the prolonged and costly process of a legal battle, the negative publicity that comes with a trial, and the financial burden of defending against a lawsuit.

The decision to engage in settlement negotiations is typically a calculated one, where defendants weigh the potential costs and risks of trial versus settling. Key considerations include the strength of a plaintiff’s claim, the likelihood of success at trial, and the magnitude of potential damages.

Defendants may also consider the impact of the litigation on their reputation. Prolonged legal disputes can lead to reputational harm and professional disruptions, regardless of the strength of their defense. The uncertainty and public exposure of a trial might lead to undesirable consequences that many defendants prefer to avoid.

For some defendants, settling can be a strategic choice. It allows them to control the narrative to some extent, mitigate risks, and prevent further disruption to their personal and professional lives.

Potential Counterclaims Available by the Defendant

If the defendant has a strong counterclaim or allegation that the plaintiff initially defamed them or accuses the plaintiff of abusing the legal system, the dynamics of the case can shift dramatically.

Counterclaims add complexity to the lawsuit, often increasing both the time and costs associated. The presence of a counterclaim raises the stakes, as it introduces the possibility of the court awarding damages against the plaintiff. This risk can act as a deterrent for plaintiffs, making settlement a more attractive option to avoid the potential repercussions of losing on a counterclaim.

In situations where the defendant has a robust counterclaim, and they succeed in getting the primary defamation claim dismissed – perhaps through an Anti-SLAPP motion – the roles in the lawsuit can reverse. This reversal can place the original plaintiff in a defensive position, facing the possibility of being held liable for damages.

Financial & Emotional Considerations

When considering whether to take a defamation case to trial, it is vital to weigh both the financial and emotional aspects of a lawsuit.

Litigating a defamation case can be costly. The expenses include attorney fees, evidence collection, expert witnesses, court fees, and potentially public relations efforts. These costs can mount quickly. Even with a successful outcome, there is no certainty of recovering all the costs incurred. This financial burden should be factored into the decision-making process, balancing the potential benefits against the costs involved.

The length of a defamation lawsuit can also vary significantly, often taking longer than expected. This not only adds to the costs but also prolongs the emotional strain associated with the case.

Moreover, the stress associated with being in the public eye, along with the uncertainty of the outcome, can be overwhelming. Lawsuits tend to involve intense scrutiny of one’s personal and professional life. This scrutiny can exacerbate the harm initially caused by the defamatory content. The emotional strain can also affect personal relationships, professional standing, and mental health.

In light of these factors, settlement can sometimes be a more pragmatic option. It might not provide the same level of vindication as a trial verdict, but it can offer a resolution that mitigates financial and emotional costs. The concept of “the juice not being worth the squeeze” is pertinent here; the outcome of a trial might not justify the extensive resources and emotional investment required.