While defamation claims resulting from libel (written statements) or slander (oral statements) can be resolved at almost any point up to the moment a judge or jury renders a verdict after a trial, resolution is most likely to occur during specific phases in the life of a claim. Let’s take a look at some possibilities.
Settlement is Possible Before a Lawsuit is Filed
The kinds of defamation claims most likely to be resolved before a lawsuit is even filed are those where:
- the impact of the defamation ("damages") was minor
- the person harmed was not a public figure
- the party who made the false statement was not “privileged” to do so under state law (e.g., statements between spouses, in judicial proceedings or legislative activities, political debates), and
- the negligent party was covered by insurance at the time of the publication.
In cases like these, there may not be much to argue about in court, and both sides may be motivated to settle and put the matter behind them. That usually becomes clear within the first 30 to 90 days after a defamation claim arises, during which time settlement would be likely.
Discovery and Motions
When a lawsuit is filed, a defamation case enters the "discovery" phase, where both sides gather and exchange information that could lead to evidence at trial -- meaning documents, sworn testimony of parties and witnesses (at depositions), and written questions and answers (interrogatories). During this phase, key issues in the case become clearer, at least factually. Remember, making a successful defamation claim means showing:
- that the defendant communicated a false statement of fact to one or more other people, either orally or in writing, and
- that the false statement caused the plaintiff “damages,” such as lost earnings, lost earning capacity, harm to reputation, loss of standing in the community, and personal humiliation.
If the evidence casts doubt on the plaintiff's claim -- for example, if it turns out that the plaintiff actually had been convicted of a crime and the defendant communicated that to someone else -- the plaintiff may not be able to recover anything for any injuries or damages. Similarly, if the defendant realized that the published statement was factually false, and then retracted it, the likelihood of the plaintiff recovering any damages is substantially reduced or eliminated.
The discovery phase usually lasts from six to 12 months following the lawsuit’s filing, and a defamation case can be settled at any point over that timeline. The case can also be dismissed at this stage if the defendant files a "motion for summary judgment," and the court grants it.
Shortly after discovery is completed, most courts schedule the parties for what is called “alternative dispute resolution” (ADR), typically mediation, to encourage them to reach a resolution with the help of a neutral third party.
In a defamation case, a mediator can try to guide the parties toward the middle on issues such as:
- whether the statement would be considered a false statement of fact versus an opinion
- whether the statement was intentional/malicious or just negligent
- the existence of any privilege that allowed the defendant to make the statement
- whether any third party actually saw or heard the defamatory statement, and
- whether the plaintiff suffered any real harm.
The mediation process itself may last between a few hours and a couple of days. If successful, the claim may be resolved and the lawsuit dismissed within less than a year after the incident.
Few defamation cases reach the trial stage. A trial is really an expensive and time-consuming last resort after all other attempts at resolution have failed. Parties sometimes wait as long as two years or more before their case gets to trial. Especially after a relatively minor libelous or slanderous publication or minimal damages, your claim stands a good chance of being resolved well before trial.