In 2012, I published a popular Avvo.com Legal Guide titled “Defamed in Colorado?” that was based on Colorado’s defamation law at the time. Since then, Colorado’s defamation law has evolved.
I’ve consulted with hundreds of prospective Colorado defamation clients. I’ve also consulted with dozens of plaintiffs’ attorneys about their clients’ defamation claims. During each consultation, I try to educate prospective clients or plaintiffs’ attorneys about defamation law before I discuss the plaintiffs’ legal options and the litigation tactics defamation defense lawyers like to use.
Defamation law can be tricky, even for experienced civil litigators. Since the U.S. Supreme Court decided New York Times v. Sullivan, 376 U.S. 254 (1964), defamation law has become increasingly (and unnecessarily) complex. The complexity favors the people and businesses who unlawfully defame others and cause them harm. It makes it harder for general civil practitioners to competently evaluate the merits of defamation claims. This, in turn, limits the percentage of plaintiffs’ attorneys who are willing and able to skillfully litigate defamation claims. Even judges often misunderstand how to apply defamation law’s rules, exceptions, and exceptions to those exceptions.
There are many pitfalls awaiting inexperienced defamation lawyers (and judges) who have not studied the relevant statutory and case law. State and federal statutes will influence whether prospective plaintiffs have viable defamation or trade libel claims. State and federal case law will influence whether a defamation claim involves a private person or public figure, whether it involves a matter of public concern or matter of private concern, and whether any common law absolute or qualified privileges will apply. Moreover, state and federal courts have not developed a bright line test that will help judges and defamation attorneys easily determine whether prospective defamation plaintiffs can prove Colorado’s courts may exercise specific personal jurisdiction over out-of-state defendants who defamed the prospective plaintiffs and caused them harm from afar. (Personal jurisdiction law for out-of state defendants who commit dignitary torts that cause people or businesses harm in Colorado has evolved quite a bit since Calder v. Jones, 465 U.S. 783 (1984)). All of these factors will influence whether a defamation or trade libel claim justifies the costs of suing someone in Colorado’s state or federal courts.
Prospective Colorado plaintiffs who can prove they have suffered substantial economic, reputational, or emotional harm as a direct result of someone else’s derogatory lies or false statements about them should schedule consultations with experienced defamation attorneys who have litigated defamation or injurious falsehood claims (aka trade libel claims) at the trial and appellate court levels.
10 Questions You Should Ask Your Defamation Lawyer
Below is a list of 10 questions every prospective Colorado defamation plaintiff should ask a defamation lawyer before deciding whether to file a defamation or trade libel lawsuit in Colorado.
1) Can the evidence I provided you, if true, prove a defamation or injurious falsehood claim under Colorado law?
2) Does Colorado’s statute of limitations bar my defamation or injurious falsehood claim?
3) Is my defamation claim a defamation per quod or defamation per se claim, and what is the difference?
4) Do the statements giving rise to my defamation claim involve a matter of public concern or a matter of private concern?
5) Would I be considered a public figure or private figure, and why?
6) Is my defamation claim a negligent defamation claim or an actual malice defamation claim, and what is the difference?
7) Would the defendant be able to prove an absolute privilege defense if I sued, and, if so, what legal options would I have left?
8) Would the defendant be able to prove a qualified privilege defense if I sued, and, if so, how would that affect my chances of winning at trial?
9) What elements would I need to prove at trial to win an actual malice defamation per se claim, and is my evidence strong enough to prove those elements?
10) Approximately how much would your firm charge me to litigate an actual malice defamation per se claim under the following five scenarios:
a) the case settles after you send a demand letter but before you file a lawsuit;
b) the case settles after you file a lawsuit but before discovery begins;
c) the case is resolved after a motion for summary judgment is litigated;
d) the case goes to trial; or
e) the trial verdict or judgment is appealed?
By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2015. All rights reserved.