A friend of mine has someone claiming defamation against him. No legal action has taken place but he's faked writing him a legal note. the plaintiff wrote a fake legal letter from fake legal staff from his cell phone to my friends email. The plaintiff claims that the defendant is conducting in defamation by telling his friends on facebook that he's in a homosexual relationship with an individual as well as has been engaged in a relationship with the defendant himself when allegedly none of this happened. He's claimed that he wants to take legal action if no formal apologies or given or formal retraction of statements....but how valid are these claims in general? Are there any base to these claims? What are the damages? What kind of suit is it...criminial...civial with punative damages?
I rather not have any responses from Michael Habrer...all other attorneys feel free to respond.
I do not think there is any defamation in the statement that someone is a gay individual. If defamation were aalleged it would be a civil case, nothing criminal here yet.
When deciding if you should sue someone there are two essential requirements. First, did the person who you think violated your rights have a duty to refrain from the activity that you think would form the basis of a suit or did they have a legal duty to do something and they did not do it. It is very difficult to determine the answer to that question based on the facts you list because it will depend on State law and possibly administrative law in your State and under Federal Law.
The second essential is where there compensable damages? Damages for which a Court can award you monetary awards or injunctive relief (order the other person to do something or stop doing something). If you have both of these elements you may sue.
However, lawsuits take a high degree of expertise and cost money. Many clients have come to me through the years and stated that the money did not matter to them, just the principal of the issue! When I tell them how much I and other lawyers charge by the hour it becomes obvious to them that the value of the lawsuit damages is very important.
You can seek out your lawyer referral service to seek counsel. There are agencies of the State and Federal Government you may want to contact. Talk to a lawyer before you decide to sue someone for expert legal advice!
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Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.
Ethics / Professional Responsibility Lawyer
Defamation is a civil, not a criminal offense. There are numerous guides on Avvo you can look at to learn the elements of the cause of action. You asked how valid are these claims in general and I will respond in general terms. Viable defamation claims are very very rare and those that are brought are usually brought by rich people because they are the only ones who can afford the legal fees. Lawyers hardly ever take these cases on contingency. Unless there are provable actual damages there is no point in even calling a lawyer, in my opinion. Actual damages means money losses, like losing a job or a customer of a business. There are certain statements that are considered defamatory per se (in itself) and requiring no proof of actual damages. Once upon a time calling someone a homosexual would have qualified as defamation per se. I doubt that it would today in New York but I have not handled a defamation case in many years.
Defamation is a cival action, and if sued, retain a local lawyer to defend.
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If your friend is really concerned about this possible civil case against him, he should hire competent counsel. The description you gave made it sound more like a scare tactic than a viable lawsuit.
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