In my defamation practice I see lawyers continually making the same mistakes when they draft complaints. Unfortunately for their clients, these drafting errors often lead to partial or complete dismissals of their lawsuits. Here are just five of these common mistakes:
1. Pleading injunction as a cause of action. An injunction is a powerful remedy for a claimant in a lawsuit, and effectively can prohibit the publication of certain statements that have been deemed to be defamatory by a court. However, it is a remedy, not a cause of action. Still, many lawyers wrongly frame it as a cause of action. This allows a savvy defamation defense lawyer to argue to a court that this is a non-existent cause of action, and therefore should be dismissed. Even worse than framing an injunction as a cause of action, is not alleging it at all, which happens all too often. This prevents the client from seeking an order from the court prohibiting defendants from making certain statements in the future.
2. Blowing the SOL. In California, the statute of limitations in libel and slander cases is one year from the date of publication, generally speaking. In situations not involving the internet, courts may allow more time than one year to file a lawsuit under an exception. But this exception does not apply to statements that are published on the internet. In other words, once an alleged defamatory statement is published on the Internet, the statue of limitations begins to run. Yet even though this is a fairly easy issue to research, I see lawyers time and again incorrectly assuming that they have more than one year to file a lawsuit for defamation relating to statements that are published on the Internet, which is a huge mistake.
3. Failing to recognize potential privileges. When I use the word privilege I am referring to certain defenses that act as a conditional or absolute bar to a claim for libel or slander. The most common and sometimes least obvious is the so–called litigation privilege. As an example, not too long ago, I saw a complaint where the plaintiff alleged that the defendant made a false report to a state licensing board. However, the litigation privilege provides absolute protection for this kind of statement. Regardless of whether the report was true or false, the plaintiff could not plead a valid claim. Unfortunately the plaintiff had to learn the hard way, because we prevailed on an anti–SLAPP motion and was forced to pay my client’s attorney’s fees.
4. Failing to plead the alleged defamatory statement verbatim. Another common error I see is failing to state the exact alleged defamatory statement. For example, a plaintiff will allege that the defendant disparaged his character without specifying what was said or written. This is a problem because the law is that “words constituting an alleged libel or slander must be specifically identified if not pleaded verbatim in the Complaint.” This rule is somewhat relaxed when the claim is one for slander, however, it become significant if the claim is libel per se. As a result of this goof, a defense lawyer can request that the court strike the cause of action on that basis alone because the plaintiff failed to state a cause of action. This is especially true in the face of a dispositive motion.
5. Pleading derivative claims. Either due to ignorance or fear, I often see attorneys adding unnecessary and wholly derivative causes of action (intentional interference with prospective economic advantage or intentional infliction of emotional distress) when simply a claim for defamation would be enough. Not only does this practice frustrate judges, but it also violates the uniform single publication act. Restyling defamation claims as other claims might also violate important First Amendment defenses, which would also be prohibited. This is probably the most common mistake that I see.
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