Was the statement or publication slanderous, defamatory, and/or libelous?
The first thing I always ask a potential client with these types of cases is what was said or printed. Often times a statement or writing can be negative without being defamatory. For our purposes here, we will use defamatory as a catch all for slander and libel. First, an opinion is generally not defamatory. For example, "I think Bob is lazy" might be the speaker's opinion. However, if the speaker states to a potential employer that "Bob never shows up for work on time," this is untrue, and Bob does not get the new job because of the speaker's statement it MAY be defamatory.
Can I prove it?
Often times, these types of cases involve "he said, she said" testimony. Give some consideration to what evidence exists of the statement or writing in question. Was it an email that widely distributed or a statement made to only a couple of people or even just one person. This makes a big difference from the standpoint of proving that the statement even occurred. If you can't prove that the statement or writing occurred, you cannot prove your case.
Do I have legal damages? Scenarios 1 and 2:
This is where the rubber meets the road in these types of cases. Often, a client will contact us and someone has said or written something negative about them. For our purposes, we will lay out two different scenarios: Scenario 1: Jack Smith goes around John Doe's neighborhood telling everyone that John Doe's house is about to be taken by the bank in a foreclosure. This is not true. Scenario 2: Same as Scenario 1, except this time Jack Smith also tells the person John Doe just interviewed with for a new job that Mr. Doe's house is in foreclosure. The interviewer wanted to hire Mr. Doe, but solely because of concerns about John Doe's credit worthiness, the interviewer does not. Mr. Doe subsequently tries to find another job and is unable.
Do I have legal damages? Analysis
In the first scenario, Mr. Doe likely has no significant legal damages. So he may technically have a legal claim, but if he does not have significant enough damages he will be unlikely to find a lawyer willing to pursue the case on a contingency fee basis. If he pays a lawyer to handle his case, it will likely cost more than he ever collects. In the second scenario, John Doe likely has a valid claim and his legal damages are the lost wages that he would have earned BUT FOR Jack Smith’s defamatory comments.
Can I collect a verdict or judgment?
This is another pitfall in these types of cases because there is no insurance coverage. It does a client no good to have a judgment or verdict if it cannot be collected. Collecting a verdict or judgment from someon's personal assets is quite difficult.