California SLAPP Law

You can’t prove slander without a witness.

I recently prevailed on back to back anti-SLAPP motions based on this simple defamation concept that often alludes attorneys and their clients. Plaintiffs bring a defamation action based on the assumption that the defendant is running around slandering them, but they have no witness to the alleged slander.

Apparently they assume that having filed the action, they will then be able to use the discovery process to find a witness. But this approach leaves them completely vulnerable to my anti-SLAPP motion. So long as I can convince the court that the alleged statements fall under the anti-SLAPP statute, the plaintiff is left with no means to satisfy the second prong of the analysis. They can’t prove that they are more likely than not to succeed on the action, since they can’t provide a witness to the statement. How can they prove the statement was defamatory, if they can’t prove that it was ever made?

I often have to explain this same reality to potential clients who want to hire me to pursue the action.  They want to do exactly what the aforesaid plaintiffs did, that left them open to my attack. So the realities of prosecuting a slander action warrants a discussion on this site.

Don’t sue for slander if you don’t have a witness.

Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.

In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.

For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.

Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.

The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what they say he said.

Slander is even tougher.           

To successfully sue for defamation, whether libel or slander, you must prove that false and defamatory statement was made about you. In the case of slander, since you have nothing in writing, you must depend on a witness. Someone has to put their hand on the bible (just an expression, that doesn’t happen) and swear to what the defendant said about you. How can you prove the statement was made, without someone testifying to hearing it?

And at this point it is important to note that a statement is not defamatory unless it is “published” to a third party. If the defendant tells you to your face that you are a no good, lying pony soldier, that is not defamatory. Thus, unless you have a witness to the defendant making the defamatory statement about you to someone else, you don’t have a case.

Callers make this way too complicated.

George: “I want to sue Joe. Joe is telling people that I’m a drug dealer, and I’m not.”

Me: “Do you have a witness who will testify that Joe told him you are a drug dealer?”

George: “Absolutely. Bill can testify that Sam told him that Joe said I was a drug dealer.”

Me: “Bill can’t testify to what Joe told Sam. That’s inadmissible hearsay. But Sam can testify to what Joe said. Why don’t you just get Sam to testify?”

George: “Sam and Joe are friends. Sam will never testify against Joe. Besides, no one knows where Sam lives.”

Me: “Then you don’t have a witness. You can’t file a case against Joe unless and until you have a witness who can testify to the words coming out of Joe’s mouth.”

Aside from the SLAPP trap already discussed, an ethical attorney is required to do due diligence before filing an action. Using the above fact pattern, if the attorney sues Joe, hoping that he will be able to track down Sam and convince him to testify, he and the client can be sued for malicious prosecution if the evidence never materializes.

Although not necessarily dictated by the law, I also won’t pursue a case without a willing witness. If I drag a witness into court kicking and screaming, they are not going to be a favorable witness.

Callers have this vision of a Perry Mason moment, where I will put Sam on the stand, and scream, “Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“Yes, yes, it’s true. Please stop. I can’t bear your withering cross-examination a minute longer!”

It doesn’t work that way. Sam’s not at all happy that you made him come to court and testify against his friend Joe, so he’s sure not going to say anything helpful to your case. He doesn’t even have to tell outright lies to make his testimony meaningless.  The testimony will more likely go something like this:

“Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“I don’t know man. I do sometimes go to the Cue and Brew, and I do remember seeing Joe there once, but I don’t remember talking to him, beyond maybe saying hi. I, like, have a drinking problem. So you can bet that if I’ve ended up at the Cue and Brew, I’m already wasted. That place is a dive.”

It doesn’t matter how certain you are that someone is slandering you.

There is a legal maxim that goes something like, “For every wrong, there should be a remedy.” That’s all fine and good, but the reality is that sometimes you simply can’t prove the wrong in order to get to the remedy.

A potential client will call wanting to sue for slander, and I send them off to find a witness after explaining why we can’t proceed without one. I then get repeat calls from them, offering what they perceive to be more and more evidence that the slander is occurring.

Understandably, they are upset that even with all the evidence of the quantum of harm they are suffering, I can’t come to their aid for lack of a witness. They decry the lack of justice. But here is the reality, based on my 30 years of legal experience, and even more time spent observing human nature.

If the slander is ongoing, a witness will appear.

If the slander was a one time thing, spoken once from the defendant to witness A, then you will never be able to pursue the action unless witness A is willing to testify. But if the slander is ongoing, someone will likely tell you.

From my experience, while it is true that people love to gossip, there are also many good people in the world. The caller believes that the rumor is so pervasive that even prospective employers hear it, and that’s why he can’t find a good job. But isn’t it likely that at some point, a prospective employer, on hearing the false rumor, would ask him about it? Even if it’s not done out of compassion, someone would spill the beans.

“Oh my god, you’re that guy who sells drugs. Joe told me all about you. I’d never hire a drug dealer like you.”

There are nice people in the world. Many have the same reaction I do. If someone is going out of their way to tell me something bad about someone, I’m going question their motives, and I will ask the person about the accusation. Isn’t it likely that upon encountering the downtrodden person in question, any decent person would feel compelled to let the person know what is being said?

Finding the thread.

When I am researching an obscure legal issue, I call it “finding the thread.” I use every search term I can think of to try to find a court decision on that point of law. I run into multiple dead ends, but eventually I find a case that is close to the point, and it refers to other cases. I can grab that thread and follow it to find the legal authority I need.

And so it is when you have people talking about you. As an example, in the case of people jumping on and spreading lies on social media, you follow the tweets and posts back to the source. In the case of slander, the task is much more challenging, but once you have that first voluntary witness, he can tell you what he was told and by who, and that person can do the same, and so on.

But until you have that first witness, you should not pursue the action.