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The Defamation Lawsuit

Johnny Depp's declaration the 50 million dollar lawsuit.

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 My Analysis - The Defamation Suit 

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First, some information on the court filing process. This explains where the stamp comes from. My guess is, Johnny's filing was a triplicate filing, meaning that one went to him, one went to the court files, and one went to the judge. 

Filing traditionally has been performed by visiting a clerk at a filing window, paying a filing fee by cash, check, or credit card, and submitting the document to be filed in duplicate or even triplicate. For each document filed, the court clerk inspects the document to ensure compliance with the court's rules on how legal documents should be formatted, verifies that the filer has not been declared a vexatious litigant, and confirms that the case number and caption are for a valid case. Next, the court clerk then stamps both copies with a large stamp that indicates the name of the court and the date the document was filed, then keeps one copy for the court's files and returns one copy to the filer for the filer's own records. In courts that require triplicate submissions, the third copy is then taken (either by the clerk or by the filer) to the chambers or courtroom of the judge assigned to the case. The clerk then adds the document to the docket for the case as well as any related deadlines or events.

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If the document is the first pleading filed in a case (usually the complaint), the court clerk also assigns a new case number and opens a new file for the case.

The lawsuit was filed on March 1st, 2019 at 12:45 PM, in the Fairfax County courthouse. First, let me remind you that it would be extremely difficult to fake a stamp like this and expect it to remain unnoticed. This stamp is very real. 

This action is a civil lawsuit. 

In general terms, a civil lawsuit is the court-based process through which Person A can seek to hold Person B liable for some type of wrong. Usually, if Person A is successful, he or she will be awarded compensation for the harm that resulted from Person B’s action or inaction. (Note: civil lawsuits can also be brought by and against businesses and other entities).

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So, a civil lawsuit can be brought over a contract dispute, a residential eviction after a broken lease, injuries sustained in a car accident, or countless other harms or disputes.

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Unlike a criminal case, which is looking to punish the wrongdoer for a crime,  a civil case is meant to compensate the victim.

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A Civil Case vs. A Criminal Case

Civil court differs from criminal court in a number of key ways.

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Civil Suits Can Be Brought By Anyone

First, a civil case is usually instigated by a private party -- a person or business who has allegedly suffered some kind of damage. In contrast, a criminal case is brought by a prosecutor or other attorney representing the local government.

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The Burden of Proof is “Lighter” in a Civil Case

Second, the “burden of proof” in a civil case -- what must be shown in order for the defendant to be held liable for what the plaintiff is alleging -- is “by a preponderance of the evidence,” meaning it is more likely than not that what the plaintiff is alleging is actually true. In a criminal case, the government must show the defendant’s guilt “beyond a reasonable doubt,” which is a much tougher standard to meet.

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The Loser in a Civil Case Pays in Dollars Rather Than Time Behind Bars

Third, what’s at stake in a civil lawsuit can usually be measured in money. The plaintiff is asking the court to make a judgment in the plaintiff’s favor, and if such a judgment is made it is usually accompanied by a court order entitling the plaintiff to a certain amount of money (called a damages award) to be paid by the defendant. Compare that to a criminal case, where if the defendant is convicted of a crime, he or she is usually facing the prospect of jail time, probation, the payment of a fine, compelled performance of community service, or some combination of these.

WHAT HAPPENS IF FRAUDULENT RECORDS ARE FILED AT THE COURTHOUSE?

 

Filing fraudulent documents at the courthouse is both unethical and illegal, but it’s a crime that dishonest people get away with. If never discovered, erroneous files passed on as fact at a courthouse can alter the future of land management. The act is considered fraud, and anyone found aiding and abetting the passing of false documents may spend time in prison and be required to pay a fine. They will also be unable to prepare or submit such documentation to the court ever again.

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Who Might Engage in This Behavior?

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While any individual is allowed to submit documentation required by the court, it is customary for an attorney to oversee all legal proceedings between a landowner or other individual and the court system. Attorneys, people who work in a courthouse, and anyone in the land management business including owners and buyers may be investigated for acts of fraud in courthouse documentation.

 

It is a Class B felony, and the basic sentence for that is 5 to 15 years in prison.

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Anyone convicted of this is unlikely to get much leniency, unless there are some very special circumstances.  This is a crime not only against the person who was given the documents to make that person pay or do something they did not legally have to do, it is a crime against the entire justice system itself.  Proof of the offense doesn't include having to prove that the fake documents "worked" at all.

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Malice Law and Legal Definition

 

Malice in law is the intent, without justification excuse or reason, to commit a wrongful act that will result in harm to another. Malice means the wrongful intention and includes all types of intent that law deems to be wrongful. Legally speaking any act done with a wrong intention is done maliciously.

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An example of a malicious act would be committing the tort of slander by calling a nondrinker an alcoholic in front of all his or her employees. With regard to crime of murder, malice is the mental condition which motivates a person to kill another without just cause or provocation. In civil cases a finding of malice allows greater damages.

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Malice can be express or implied. Express malice is the intent to kill or seriously injure arising from a deliberate, rational mind. On the other hand implied malice is that which can be inferred from a person's conduct.

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Example of a State Statute defining Malice:

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As used in California Penal Code, ‘Malice’ means the following:

Cal Pen Code § 7

4. The words "malice" and "maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.

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Cal Pen Code § 188 explains express and implied malice

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Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

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When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

So, by stating that Heard wrote her op-ed with malice means that she did it on purpose to intentionally harm Johnny Depp's life and career, and she did this op-ed around the time that Aquaman was due to release in theaters. 

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The first sentence of this states the reason that Johnny Depp is suing Amber Heard. It isn't for the money, it is for the damage that she brought to his personal life, his children's lives, and his reputation. 

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Depp is only seeking compensation for this article (the op-ed) but he cites here that she has continued to push the false narrative of him being a domestic abuser since 2016. 

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This would be true since she did a PSA for GirlGaze, read her Porter letter, did multiple other articles referring to herself as a domestic violence survivor, and appeared on live television discussing her role as a "survivor". 

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This bit is just an overview of Virginia's defamation laws. 

Elements of Defamation

In Virginia, the elements of a defamation claim are

  1. publication of

  2. an actionable statement with

  3. the requisite fault on the part of the defendant.

  4. ​

To be “actionable,” the statement must be a false statement of fact that harms the plaintiff's reputation in the community or deters other persons from associating with him or her. These elements of a defamation claim in Virginia are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

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Defamation Per Se

Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:

  • attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;

  • indicates that the plaintiff is infected with a contagious disease;

  • attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or

  • hurts the plaintiff in his or her profession or trade.

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Fleming v. Moore, 221 Va. 884, 899 (1981).

Public and Private Figures

The Virginia courts generally require a high level of public activity before a plaintiff becomes a limited-purpose public figure. The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). In Virginia, courts look at the following factors in determining whether a plaintiff is a limited-purpose public figure:

  1. whether the plaintiff had access to channels of effective communication;

  2. whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;

  3. whether the plaintiff sought to influence the resolution or outcome of the controversy;

  4. whether the controversy existed prior to the publication of the defamatory statements; and

  5. whether the plaintiff retained public figure status at the time of the alleged defamation.

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Carr v. Forbes, Inc., 259 F.3d 273, 280 (2001) 

In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

  • the president of the two charitable organizations because the charities thrust themselves into the public eye through fund raising awareness efforts (Chapin v. Knight‑Ridder, Inc.);

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  • a widely-published scientist and self-styled whistleblower who claimed the National Cancer Institute (NCI) had reversed its official position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);

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  • A dolphin scientist who attempted to sell his dolphin technology to military and nonmilitary industries and who sought to influence the outcome of a public controversy through brochures and public statements (Fitzgerald v. Penthouse).

On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

  • a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);

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  • a public school English teacher and short-term, acting department head whose students complained of her poor teaching performance to parents and the school principal (Richmond Newspapers v. Lipscomb);

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  • a company engaged in archaeological research for both government and private entities that was not generally known to the community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).

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Actual Malice and Negligence

Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent. In cases brought by private figures where substantial danger to reputation is not apparent, the actual malice standard applies. The Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.  

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Privileges and Defenses

Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

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CMLP has not identified any Virginia cases that recognize or refuse to recognize the neutral reportage privilege or the wire service defense. See Chapin v. Knight‑Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that "[w]e have never adopted or rejected the ‘neutral reportage' privilege . . . .")

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There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

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In Virginia, the precise scope of the fair report privilege is not clear because all of the cases interpreting it have involved reports of court proceedings. The privilege covers reports of court proceedings, including matters stated in court documents, when the report is made in good faith and substantially accurate.

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In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956), the Virginia Supreme Court stated that "[t]he publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record." Because the case involved court proceedings not other government records, this statement would not necessarily bind later courts, but it is likely that Virginia courts would apply the privilege to government records open to the public. In that case, you would be privileged to report on information contained in marriage and divorce records, birth and death records, and property records, among other things, in addition to matters reflected in court records and proceedings.

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A few federal courts interpreting Virginia law have applied the fair report privilege to "governmental actions," like the unofficial public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of reprimand leaked to the press, Reuber, 925 F.2d at 713.

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Neutral Reportage Privilege

CMLP has not identified any cases in Virginia concerning the neutral reportage privilege.  If you are aware of any, please contact us. 

Wire Service Defense

CMLP has not identified any cases in Virginia concerning the wire service defense.  If you are aware of any, please contact us.

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Statute of Limitations for Defamation

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The statute of limitations for defamation is one (1) year. See Va. Code Ann. Sec. 8.01-247.1.

The Virginia Supreme Court has not ruled on whether the single publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. One federal appeals court applying Virginia law upheld application of the single publication rule, reasoning that a great majority of states now follow it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984).

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Oooookay. So, here is where it states that Amber was cheating on Depp with Elon Musk. Depp claims that he has surveillance footage to prove this, and there are also building staff that can confirm Elon's visits.

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With the new information coming out that part of Depp's 2016 divorce legal team also represented Musk, this holds a lot more weight in a lot of places. On my pure speculation, this implicates Musk as being an accomplice in Heard's hoax. 

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Shortly after divorcing Johnny Depp, Amber Heard entered a relationship with Elon Musk...except, apparently it wasn't as new as people thought. A narcissist entering new relationships while maintaining control over their victim is not uncommon. 

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A lot of Heard fans continue to peddle that van Ree stated that the incident was only a misunderstanding (7 years after the fact)...but this account doesn't sound like a misunderstanding to me. It sounds like Heard got pissed and attacked van Ree. She grabbed Tasya by the arm, hit her on the arm, and then tore her necklace off of her neck. 

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Yeah, that's a "misunderstanding". 

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Also stated here: The only reason the prosecutor declined to press charges against Heard was because her and Tasya were only passing through Washington. Their residence was in California. 

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MS HEARD'S DOMESTIC ABUSE OF MR. DEPP CONTINUED UNABATED THROUGHOUT THEIR 15-MONTH MARRIAGE. MS. HEARD THREW DANGEROUS OBJECTS AT MR. DEPP, AND ALSO KICKED AND PUNCHED HIM WITH REGULARITY. 

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It goes on to talk about a classic move of a narcissist. Reverse the roles and turn your victim into the perpetrator. This allows the narcissist to explore yet another avenue of control. 

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Yet another unbiased neutral witness stating they never saw Amber Heard with any kind of injury on her face. 

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That makes like......at least 10 people? Depp's security team (Jerry Judge and Sean Bett), Isaac, Trinity, Cornelius, Officer Hadden, Officer Saenz, Alejandro, Mr. Patterson.....ok, 9. Still, that's a lot. 

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NINE PEOPLE STATED THAT THEY NEVER SAW INJURIES ON AMBER HEARD.

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So.

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Imagine you're Amber Heard. You have recently been brutally beaten by your husband. I bet the first thing you would do is not only allow your sister to pretend-punch you in the face, then you would all LAUGH about it. 

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Right?

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NO.

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THOSE THINGS NEVER HAPPENED.

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NO CRIME HAD BEEN COMMITTED.

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YOU CANNOT PUT THESE THINGS INTO AN OFFICIAL COURT FILING IF YOU DON'T HAVE THE EVIDENCE TO BACK IT UP.

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CAPTAIN Jack Sparrow. 

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OK, this is really important. This lists what Depp is seeking in his lawsuit. He wants 50 Million+, punitive damages, attorneys' fees...but it is important to remember that Johnny doesn't actually care about the money, he just wants to make absolutely damn sure that Heard has no way to wiggle out of this, so that his name can actually be cleared. 

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In a civil trial, a judge or jury examines the evidence to decide whether, by a "preponderance of the evidence," the defendant should be held legally responsible for the damages alleged by the plaintiff. A trial is the plaintiff's opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant's chance to refute the plaintiff's case, and to offer his or her own evidence related to the dispute at issue.

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After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff's claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy).

 

Depending on the type of case being heard, a civil trial may not necessarily focus only on the plaintiff's allegations and the defendant's liability. For example, in most divorce cases a trial judge reaches a decision after hearing allegations from both sides of the dispute, and enters a judgment that may favor one spouse on one issue (child custody), and the other spouse as to another issue (alimony). The following overview discussion of a civil trial is presented mostly in the context of a typical"plaintiff vs. defendant" civil case.

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(Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of civil disputes are resolved well before trial -- and in some cases before a lawsuit is even filed -- via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.)

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A complete civil trial typically consists of six main phases, each of which is described in more detail below:

  • Choosing a Jury

  • Opening Statements

  • Witness Testimony and Cross-Examination

  • Closing Arguments

  • Jury Instruction

  • Jury Deliberation and Verdict

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Choosing a Jury

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Except in cases that are tried only before a judge (i.e. most family court cases), one of the first steps in any civil trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning.

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Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors through use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.

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Opening Statements

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Once a jury is selected, the first "dialogue" in a personal injury trial comes in the form of two opening statements -- one from the plaintiff's attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized.

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Because the plaintiff must demonstrate the defendant's legal liability based on the plaintiff's allegations, the plaintiff's opening statement is usually given first, and is often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff's main case before making its own opening statement.

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Regardless of when opening statements are made by either side in a personal injury case, during those statements:

  • The plaintiff presents the facts of the case and the defendant's alleged role in causing the plaintiff's damages (or reasons to find for the plaintiff) -- basically walking the jury through what the plaintiff intends to demonstrate in order to get a civil judgment against the defendant.

  • The defendant's attorney gives the jury the defense's own interpretation of the facts, and sets the stage for rebutting the plaintiff's key evidence and presenting any "affirmative" defenses to the plaintiff's allegations (or reasons to find for the defendant).

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When a civil lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments.

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Witness Testimony and Cross-Examination

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At the heart of any civil trial is what is often called the "case-in-chief," the stage at which each side presents its key evidence and arguments to the jury.

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In its case-in-chief, the plaintiff methodically sets forth its evidence in an attempt to convince the jury that the defendant is legally responsible for the plaintiff's damages, or that judgment for the plaintiff is warranted under the circumstances. It is at this point that the plaintiff may call witnesses and experts to testify, in order to strengthen his or her case. The plaintiff may also introduce physical evidence, such as photographs, documents, and medical reports. Especially in more complicated civil lawsuits such as employment discrimination and defective product claims, a plaintiff's utilization of expert testimony and documentary evidence will be crucial in proving the defendant's legal liability.

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Whether a witness is called by the plaintiff or the defendant, the witness testimony process usually adheres to the following formula:

  • The witness is called to the stand and is "sworn in," taking an oath to tell the truth.

  • The party who called the witness to the stand questions the witness through "direct" examination, eliciting information through question-and-answer, to strengthen the party's position in the dispute.

  • After direct examination, the opposing party has an opportunity to question the witness through "cross-examination" -- attempting to poke holes in the witness's story, attack their credibility, or otherwise discredit the witness and his or her testimony.

  • After cross-examination, the side that originally called the witness has a second opportunity to question him or her, through "re-direct examination," and attempt to remedy any damaging effects of cross-examination.

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After the plaintiff concludes its case-in-chief and "rests," the defendant can present its own evidence in the same proactive manner, seeking to show that it is not liable for the plaintiff's claimed harm. The defense may call its own witnesses to the stand, and can present any of its own independent evidence in an effort to refute or downplay the key elements of the plaintiff's legal allegations. Once the defense has rested, the plaintiff has an opportunity to respond to the defense's arguments through a process known as "rebuttal," a brief period during which the plaintiff may only contradict the defense's evidence (rather than present new arguments). Sometimes, the defense may in turn have a chance to respond to the prosecution's rebuttal.

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Once the plaintiff and defendant each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides "rest," meaning that no more evidence will be presented to the jury before closing arguments are made.

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Closing Arguments

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Similar to the opening statement, the closing argument offers the plaintiff and the defendant in a civil dispute a chance to "sum up" the case, recapping the evidence in a light favorable to their respective positions. This is the final chance for the parties to address the jury prior to deliberations, so in closing arguments the plaintiff seeks to show why the evidence requires the jury to find the defendant legally responsible for the plaintiff's damages, or why the plaintiff's case is stronger than the defendant's. In turn, the defendant tries to show that the plaintiff has fallen short of establishing the defendant's liability for any civil judgment in the plaintiff's favor.

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Jury Instruction

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After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction -- a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant should be held accountable for the plaintiff's alleged harm.

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The judge decides what legal standards should apply to the defendant's case, based on the civil claims at issue and the evidence presented during the trial. Often, this process takes place with input and argument from both the plaintiff and the defendant. The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. The judge also describes key concepts, such as the "preponderance of the evidence" legal standard; defines any specific claims the jury may consider (i.e."fraud,""breach of contract,""emotional distress"); and discusses different types of damages (i.e. compensatory and punitive) -- all based on the evidence presented at trial.

The case then goes "to the jury."

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Jury Deliberation and Verdict

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After receiving instruction from the judge, the jurors as a group consider the case through a process called "deliberation," attempting to agree on whether the defendant should be held liable based on the plaintiff's claims, and if so, the appropriate compensation for any damages. Deliberation is the first opportunity for the jury to discuss the case -- a methodical process that can last from a few hours to several weeks. Once the jury reaches a decision, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.

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Most states require that a 12-person jury in a personal injury case be unanimous in finding for the plaintiff or the defendant, though some states allow for verdicts based on a majority as low as 9 to 3. If the jury fails to reach a unanimous (or sufficient majority) verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start over again from the jury selection stage.

More Info:

Defamation is a wrongful act that occurs when someone makes a false statement of fact about you, and you suffer harm to your reputation as a result. In this article, we’ll discuss some of the important evidence that you will need to gather in order to make sure your defamation lawsuit is successful.

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Types Of Evidence in a Defamation Case

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The purpose of evidence is to persuade the trier of fact -- usually the jury in a  defamation lawsuit  -- that a fact or issue of the case is or is not established. Evidence can either be direct or circumstantial.

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Direct Evidence.  Direct evidence means that the evidence supports the disputed fact without the need for any intervening inference. For example, a witness testifying that they heard the defamatory statement would be direct evidence.

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Circumstantial Evidence.  Circumstantial evidence, on the other hand, consists of a fact or series of facts that, if proven, indirectly prove another fact. Circumstantial evidence is the most common form of evidence.

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Forms Of Evidence in a Defamation Case

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There are four common forms of evidence in a defamation case: testimonial, documentary, physical, and demonstrative.

Testimonial Evidence.  Testimonial evidence is oral or written evidence that is offered in court, usually by oath or affirmation under penalty of perjury. This type of evidence can include lay or expert witness testimony.

Documentary Evidence.  Documentary evidence is any evidence introduced at trial in the form of documents or writings. For example, an email containing the defamatory statement.

Physical Evidence.  Physical evidence, or real evidence, is a material object introduced at trial. These objects are tangible, meaning they can be seen, touched, or felt.

Demonstrative Evidence.  Demonstrative evidence is evidence that illustrates or represents other evidence that is introduced at trial. For example, a timeline showing when the defamatory statements were made would be demonstrative evidence.

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Supporting Your Prima Facie Case For Defamation

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What Is Your Prima Facie Case?  When you gather your evidence, it must be focused on meeting all elements of a defamation claim. This is called establishing a "prima facie" case. Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements must be satisfied:

Burden Of Proof.  The law requires that these elements be established in a manner that meets the burden of proof. The burden of proof in a civil matter is usually a preponderance of the evidence (i.e., greater than 50% chance that the proposition is true).

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Sources Of Evidence

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Most evidence for a defamation case will be found and gathered by interviewing witnesses, obtaining documents, conducting legal research, and consulting with experts.

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Interviewing Witnesses.  You will need to gather a list of witnesses who will be able to testify that they heard or read the defamatory statement. This can be any third party, including the public or a group of people. The information they provide you must be verified. In addition, other factors must be considered, such as whether or not a jury will find them credible.

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Obtaining Documents.  If the defamatory statement was made in writing, such as in a magazine or newspaper, or even online through a blog, website, or email, make sure to save a copy. This is especially important for writings that are not in your control, such as someone’s Twitter feed. You should also collect receipts, paystubs, and other documents to support your claim for actual damages.

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Conducting Legal Research.  It is also important to research case law to determine how courts have interpreted some of the legal issues. For example, perhaps in your case, you want to assert that being called a “jackass” is a defamatory statement. However, if a previous case established that this type of statement is merely an opinion, you will have a more difficult time making your prima facie case.

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Consulting With Experts.  Experts can be an invaluable tool to help you assess the damages that you have suffered with respect to your property, business, trade, profession or occupation, and for those losses for which money is only a rough substitute -- such as shame, mortification, or hurt feelings.

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Preparing For Potential Defenses.  Though not part of your prima facie case, it is also a good idea to gather evidence to rebut any potential defenses the defendant may have. For example, if you lost your job as a result of the defamatory statement, in order to recover the full amount of your salary loss, you will need to prove that you attempted to mitigate the harm (i.e., you will need to provide evidence that you were looking for a job afterwards).

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The Discovery Process

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Most of the evidence is usually obtained during discovery. Discovery is a pretrial stage where both sides exchange information in preparation for trial. The length of this period varies according to the type of case and jurisdiction.

Common discovery tools used in a defamation case include:

  • interrogatories (questions the other party must answer in writing and under oath)

  • depositions (oral, interviews taken under oath by opposing counsel)

  • requests for production of documents

  • requests for admissions, and

  • subpoenas.

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The rules for producing evidence during discovery, however, are generally more lenient than during trial. For example, during trial, evidence must be relevant, meaning that it must have a tendency to prove or disprove a fact that is of consequence. During discovery, generally, the evidence must only be able to reasonably lead to other matters that could bear on any issue that is or may be in the case. Privileges, like the attorney client privilege, must still be observed.

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Discovery can be very expensive and time-consuming. In most defamation cases, the costs of discovery make up the bulk of the lawsuit costs. An effective discovery game plan requires both in-depth knowledge of evidence rules and familiarity with legal strategies. You'll need an attorney experienced in these types of cases to prove your claim and help you get a good outcome, that is, a fair settlement or winning jury verdict.

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