7.25 Practical Considerations

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.25 PRACTICAL CONSIDERATIONS

7.2501 In General. Before initiating defamation litigation, plaintiffs should consider at least two factors: (i) whether it is realistic to expect an award of substantial damages and (ii) whether there is any background information that the plaintiffs do not wish to have revealed over the course of the litigation.

7.2502 Seeking Non-Litigation Relief. Would-be plaintiffs hoping to avoid litigation might consider several possible steps when dealing with would-be defendants.

In essence, such efforts to obtain a retraction or an apology can rely on threatening, shaming, or sweet-talking. Media would-be defendants might want to retract a story if threatened with an expensive viable lawsuit. They might also be ashamed of what a reporter had written and be willing to correct it. Ultimately, they might be willing to correct an earlier false or

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allegedly false story in return for an interview or quotation that might generate positive attention.

Non-media would-be defendants are less likely to correct allegedly defamatory statements, depending on their motivation for the original communications. In some situations, the writer or speaker thrives on attention and would almost welcome a threat from the target of their original communications. In David-versus-Goliath situations, the writer or speaker might immediately post such a threat, seeking to generate sympathy or attention. And if the writer or speaker has few if any assets, a lawsuit would not hurt him or her as much as it would a media defendant. Finally, those individuals are much less likely than media defendants to be shamed or sweet-talked into retracting or correcting any allegedly defamatory statements.

7.2503 Mirage of Substantial Damages. Perhaps the media must take the blame for creating the allure of substantial damages in defamation cases. The media reports on multimillion-dollar verdicts in favor of plaintiffs (especially public plaintiffs) but does not report as often on news of the trial judges and appellate courts as they chip away at or eliminate those damages.

Most public plaintiffs who win substantial damages find that the trial judge or appellate courts will greatly reduce the awards. For instance, a Houston company won a federal court verdict of $222.7 million against Dow Jones & Company for an allegedly defamatory Wall Street Journal article that purportedly put the company out of business. However, the court quickly set aside $200 million in punitive damages from the award. ¹³⁵⁰

Studies confirm that plaintiffs suing media defendants often win at the trial level, usually lose at the appellate level, and rarely if ever recover substantial sums of money. ¹³⁵¹

7.2504 "Skeletons in the Closet." Many public plaintiffs file defamation actions in haste and very quickly wish they had not. Facing a monumental burden of proof, public plaintiffs often find that if they lose the

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lawsuit, the public perceives this loss as somehow affirming the truth of the defamatory statement.

Facing difficult legal and public relations obstacles, many public plaintiffs simply drop their actions before trial. More stubborn public plaintiffs sometimes regret their filings even more...