Negotiating over libel with an attorney who lied to me

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I wrote an "rant" on craigslist about my old boss. Long story short, she found out it was me, I answered the Complaint, and did a deposition. Everything I said is true, but I spoke from a point of anonymity. I called her dishonest and a criminal (which she is, and have other ex-employees to back me up).

Her attorneys are now pressing me to mediate. She has not answered the discovery, nor has my atty done a deposition. My atty suggested I do mediation now and offer her (and 3 other owners) a very small settlement. I also found out my atty lied to me, he told she had filed an extension to answer the questions, and I called the Clerks office, they did not. I know I can file a "compel to answer" with a dismissal. Please read on...

It is my best guess that my old boss doesn't want to answer the complaint because it means she has to get all the owners at the business to answer it, for all I know, only she knows about this deal.

Any thoughts on how hard it is to win a defamation case? Any opinions or thoughts on my situation? I currently told my atty that I would not being doing mediation until all answers were in, or they could take the $500 I'm offering them and drop the deal. My atty after today said she felt she could not represent me anymore. (Wonder why?!) I'm still waiting to see if my old boss takes the offer.

Thanks.

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[+3] - joefromchicago - 06/08/2009First of all, what state are you in? Second, it sounds like your ex-boss is suing you for libel [i]per se[/i], which means that she doesn't have to prove actual damages (which means...

View best answer, chosen by 2415Tooltime

Damages must be proven. How was this person hurt by what you said?

You have a choice: pay the $500 and be done with it - or get ready for an expensive, drawn out litigation.

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@sullyfish6,

Thanks for your answer. She (nor anyone in the company) have given me proof of their damages yet, they have not answered the questions. I have paid my atty 2500 to get this far. I just hope they accept the $500. Due to the economy and in general, I can't imagine they are going to have an easy time showing/proving damages. What do you think?

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@2415Tooltime,

First of all, what state are you in?

Second, it sounds like your ex-boss is suing you for libel per se, which means that she doesn't have to prove actual damages (which means sullyfish is wrong, as usual).

I don't know what procedures you're talking about. Clerks don't always know what's going on in a case and may not understand it even if they do, so I wouldn't put a lot of stock in what the clerk told you. Your attorney should be giving you copies of court filings, including orders granting extensions of time.

Mediation is designed to get rid of cases. If your ex-boss is eager to go to mediation, that would indicate to me that she doesn't think her case is strong enough to go to court, or that she fears the publicity, or that she thinks it will be more trouble than it's worth. In any event, I'd go into mediation with the intention of paying nothing to settle the matter. You might offer to give an apology, but that's it. If your ex-boss wants cash, I'd be inclined to tell her to get it from a jury.

That being said, trials are expensive propositions. Defamation is a tough case to win, and truth is usually a defense. Proving the truth, however, may be difficult if you don't have cooperative witnesses. On balance, it sounds like neither of you should be too happy about seeing this matter go to trial.

Finally, if you think your lawyer is lying to you, it might be time to get a new lawyer. Sit down and talk with him -- if you find out that he hasn't been entirely straight with you, then start looking for a replacement.

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@joefromchicago,

Thanks for your answer! I'm confused. If libel per se is true, how is it different from libel? Yes, I did talk about her business practices and her past criminal stuff. Still my atty has told me she has to prove damages.

The clerk of courts checked my case ID, and the only extension she found was one if mine. More so, I had asked my atty for copies of the extension last month to which he never got back to me about. I never forgot that.

I'd like to think the mediation would help but she is yet to answer my discovery. She is def. out for money. She knows I have no money so she got her atty to pull in my legal companion, claiming she is a co-conspirator. This will in the end look lousy to a jury I know.

So tell me Joe, is libel per se "bad" even if it is true? I do have three other employees to back me up, and of course her criminal report.

Thanks a bunch!

1 Reply

@2415Tooltime,

2415Tooltime wrote:

Thanks for your answer! I'm confused. If libel per se is true, how is it different from libel? Yes, I did talk about her business practices and her past criminal stuff. Still my atty has told me she has to prove damages.

Libel per se is distinguished from libel per quod. Libel per se is when a defendant says something so disparaging that damages are presumed. It includes charges that a person is dishonest in his/her business or is guilty of a crime. That seems to be the case here. Libel per quod is when the statements are not, on their face, injurious but which, in context, can be construed as libelous. In those cases, damages are not presumed but must be proved. Unless your state has eliminated the distinction between the two types of libel (and you still haven't told me what state you are in), then I'm guessing your ex-boss is suing you for libel per se rather than libel per quod. And if your attorney doesn't understand the difference, it's time to get a new attorney.

2415Tooltime wrote:

I'd like to think the mediation would help but she is yet to answer my discovery. She is def. out for money. She knows I have no money so she got her atty to pull in my legal companion, claiming she is a co-conspirator. This will in the end look lousy to a jury I know.

Well, if it's all true, then you should be fine. It will, however, be your burden to establish the truth of your statements, which isn't always easy. Like I said, mediation is for people who don't want to go to trial, and most litigants who are sure of their cases go into mediation reluctantly, if at all. If your ex-boss is eager to go the mediation route, then I'd be unwilling to offer any money to settle the case. That, I hasten to add, is just my gut feeling about this situation -- I don't know enough about it to offer any concrete advice.

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@2415Tooltime,

If the other side is pushing for mediation, then Joe could be right and they believe they have a weak case. It can also mean that they don't want to keep bothering with litigation and are willing to accept something less than what they believe they can win in court just to put an end to it.

Since your attorney is recommending mediation and making an offer, it's also possible that she believes your defense is weak.

That she is talking about withdrawing her representation of you suggests she doesn't think you are willing to listen to her advice.

Attorneys who are having trouble convincing a client of the weakness of their position will often recommend mediation in the hopes that the client will listen when an objective third party tells them the same thing the lawyer has.

It doesn't cost you anything (but time) to go to the mediation. You are not required to make an offer, and you should be able to get a clearer idea of how much your boss wants. An apology from you may be a big part of what she is looking for.

It's going to cost you a lot more than the $2,500 you have already paid to take this case all the way. Setting aside professional ethics, your lawyer has an economic incentive to not see the case settle. You settle tomorrow, and her meter stops running.

Listen to your lawyer and if you don't have faith in her, get a new one and listen to him or her.

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@2415Tooltime,

In reading Finn's post, it occurred to me that I overlooked this part of your initial post:

2415Tooltime wrote:

My atty after today said she felt she could not represent me anymore. (Wonder why?!)

Well, I don't really wonder why. Let me be blunt, Tooltime: you sound like a difficult client. Granted, I could be wrong, but that's just the impression I get. And add that to the fact that you go around bad-mouthing your former employers anonymously on Craig's List -- well, it doesn't present a terribly positive picture of you.

I don't know what sort of advice you've been getting from your attorney or what kind of work she has been doing for you. If she has advised you that following through with this litigation will be risky and expensive, then she was giving you good advice. Taking a matter to trial, even a seemingly simple one, can be very costly, and if you want to follow this all the way to the end of the line you have to be prepared to pay the freight.

If this attorney no longer wants to represent you, that either means you haven't got the means to pursue this litigation or else you're being extremely difficult. If you're not in a big city, you should be aware that the local legal community is often very close-knit and word gets around quickly about bad clients. A person with that kind of reputation can soon find that no attorney is willing to represent them.

Just something else to take into consideration.

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wait a minute, you're claiming a lawyer lied Shocked

isn't that like saying the sun rises and sets

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@joefromchicago,

Hey Joe, ain't I supposed to be innocent until proven guilty??? My atty told me the plaintiffs had filed for an extension. Remember, my old boss has not answered the questions we sent 50+ days ago. Well come to find out the plaintiff did not file an extension. Ergo, my atty lied, she told me they had filed the extension, never sent me paperwork though. When I confronted her, she was like, "I can't be your atty anymore." Well, duh.

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@2415Tooltime,

I don't have any information about your case other than what you've told me, so I can only give you my impressions based on what you've said and informed by my many years of practicing law. No doubt it's possible that your attorney lied to you about the extension. It may, however, have been an informal extension to which your attorney and your ex-boss's attorney agreed, so nothing would have been filed with the court. That happens a lot, and it's not something to become agitated over.

Bottom line: if you want to get rid of your attorney and your attorney wants to get rid of you, then we have a perfect meeting of the minds here. Stop complaining about your attorney and start looking for another one.

1 Reply

@joefromchicago,

Joe, I'm not complaining over my attorney, so I'd like to move past that - I hope I have cleared up any Q&A's regarding that issue. I'd like to move on if everyone can agree.

What I'd really like to get back to was what libel v. libel per se. I understand the difference. I don't understand how a person collects "damages" or proves "loss" in BOTH situations. Can you give me an example? Let's use my current situation... lets say my old boss lady says, "Because of this post I had a decline of 25% in our store sales, I would like that to be returned to me." Is that what they have to say in libel per se? I mean, in both types of libel, don't you still have to show the jury/judge your real damages. With the economy, I'd image that's tough. Please help me understand this better.

Thanks for all the help everyone & Joe too!

1 Reply

@2415Tooltime,

In a libel per se claim, a plaintiff does not have to show actual damages. Instead, the libelous statement is deemed to be so injurious in itself that the jury is permitted to determine, on its own, just how much damage it caused. For instance, if I say "Tooltime has AIDS and is spreading it all over town," you wouldn't have to prove that you've suffered any pecuniary loss in order for the jury to award you damages.

In a libel per quod claim, a plaintiff must show actual damages because the libelous statement is not the kind that we presume to be injurious. For instance, if I say "Tooltime is divorced," that's not the kind of statement that would normally be considered injurious. In your particular circumstances, however, it might damage your business or reputation. In that case, you'd have to prove actual monetary damages.

Of course, someone who alleges libel per se can still plead and recover actual damages, and if someone alleges actual damages they'd have to prove them. It's just not necessary. Your ex-boss, then, could say "because of Tooltime's statement, I lost 25% of my store sales and my reputation has been injured." She would have to prove the amount of the lost sales, but the jury could decide for itself how much your ex-boss's injured reputation is worth.

Rather than guessing what kind of libel charge you're facing, you should be able to tell what is being alleged by reading your ex-boss's complaint. If you don't have a copy of the complaint, your attorney should give you one.

1 Reply

@joefromchicago,

Wow, awesome info.

In the complaint, it is for libel per se. I was just trying to understand the difference because my atty keeps telling me that the ex-boss has to show how she was injured. Then you got me thinking with what you siad...

My atty told me that in order for her to recover any damages, she had to show that she lost something in the few months my post was up there. What I said is true, but I can tell you based on my deposition the atty was trying to twist it every which way. I have a few other ex-employees who will back me up with my opinion/experience too.

I'm up for the mediation but was hoping to get my boss' answers back to see just what sort of damage she felt I had caused. Did I mention she brought in my domestic partner, since we live as married couple? Her atty said that since I used my wife's laptop, she was in on it too, the judge allowed it. I mean you can sue anybody, but I thought that was weird to include her. What do you make of that one? Rouging us up, or out for more money (my wife is the bread winner.) Yes, we are lesbians if you are wondering!

You're that best Joe, I can't thank you enough.

1 Reply

@2415Tooltime,

2415Tooltime wrote:

Did I mention she brought in my domestic partner, since we live as married couple? Her atty said that since I used my wife's laptop, she was in on it too, the judge allowed it. I mean you can sue anybody, but I thought that was weird to include her. What do you make of that one? Rouging us up, or out for more money (my wife is the bread winner.)

Yeah, you mentioned that. I can't discern the motivations of the other side in this matter, but I wouldn't discount the possibility that your ex-boss is just being a total ass.

2415Tooltime wrote:

You're that best Joe, I can't thank you enough.

I'm glad I could be of some assistance.

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@2415Tooltime,

If you are not happy on how your lawyer represent you, you may fire him and hire another one that best pursue your interest.

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@joefromchicago,

Ha ha, yeah that "total ass" part I really should have put in my craigslist rant too! Very funny Joe.

Let me give you the update: my atty said they have until July 10 to answer questions. I am yet to receive any paperwork confirming this, but my atty did say they did filed an extension. Should I ask for paperwork to confirm this? I get the feeling I shouldn't challenge him on this one, and let it go. It is odd he sent me nothing, usually sends me copies of everything.

Also, should I do a second set of discovery, and schedule a deposition? Will this put the squeeze on them? It has always been their atty that wants to push for mediation. I was told that their atty wanted to be done with it by June to go on a vacation. My atty feels my old boss does have a chance, but I have a very convincing argument for the truth (my opinion based on facts), the actual truth (court records), plus others ( ex-employees) who feel the same way. He doubts my old boss lady would win anything big with a jury, but says it depends on so many things, judge, jury, etc. he has said we may lose but lose for a dollar.

One last thing, you mentioned that my old boss doesn't necessarily have to prove her damages in libel per se. I'm still confused about this one... she can just go to the jury and say, this is worth 100,000 of presumed damages and that's it? Don't you have to prove loss either way, libel or the per se? Gosh I just can't get my head around this one.

If my old boss does win a settlement, will the jury exclude my wife if they find she is not involved? I only used her laptop to write the thing, she was visiting her sister in Canada at the time.

Thanks for giving me have a good laugh! You are amazing and so thankful to have met you

1 Reply

@2415Tooltime,

2415Tooltime wrote:

Ha ha, yeah that "total ass" part I really should have put in my craigslist rant too! Very funny Joe.

Considering the consequences of your last craigslist rant, I think moderation is your best policy from now on.

2415Tooltime wrote:

Let me give you the update: my atty said they have until July 10 to answer questions. I am yet to receive any paperwork confirming this, but my atty did say they did filed an extension. Should I ask for paperwork to confirm this? I get the feeling I shouldn't challenge him on this one, and let it go. It is odd he sent me nothing, usually sends me copies of everything.

As I said before, it may have been an informal extension. Those sorts of things happen all the time.

2415Tooltime wrote:

Also, should I do a second set of discovery, and schedule a deposition?

Without knowing anything about the case, I have no idea. In general, more discovery is always better than less.

2415Tooltime wrote:

Will this put the squeeze on them? It has always been their atty that wants to push for mediation. I was told that their atty wanted to be done with it by June to go on a vacation. My atty feels my old boss does have a chance, but I have a very convincing argument for the truth (my opinion based on facts), the actual truth (court records), plus others ( ex-employees) who feel the same way. He doubts my old boss lady would win anything big with a jury, but says it depends on so many things, judge, jury, etc. he has said we may lose but lose for a dollar.

That may very well be the case. If a jury finds that the statement was made and that it was libelous by its very nature, then the jury must award damages, even if they're only nominal. So it's quite possible for a jury to come back and give the plaintiff one dollar in damages.

2415Tooltime wrote:

One last thing, you mentioned that my old boss doesn't necessarily have to prove her damages in libel per se. I'm still confused about this one... she can just go to the jury and say, this is worth 100,000 of presumed damages and that's it? Don't you have to prove loss either way, libel or the per se? Gosh I just can't get my head around this one.

They're reputational damages. No one can measure the value of one's reputation and no one can prove the amount that it has been damaged, so it's up to the jury to decide. How much is your ex-boss's reputation worth? I don't know. How much is your reputation worth?

2415Tooltime wrote:

If my old boss does win a settlement, will the jury exclude my wife if they find she is not involved? I only used her laptop to write the thing, she was visiting her sister in Canada at the time.

I really can't say anything about that aspect of the case. I've never heard of someone accused of conspiring to commit libel, but it certainly is theoretically possible. On the other hand, it strikes me as extremely far-fetched, but then I don't know any of the specifics of the case, so I can't offer an opinion.

1 Reply

@joefromchicago,

There is no such thing as conspiracy to commit libel.
NEVER go to mediation without having completed discovery first.
Discovery can be done pro se if you study a bit on how it is done.
You have to make specific statements to constitute libel. If you say someone is a crook and a jerk or you don't trust them, that is like negative puffery, it is freedom of speech. If you say the person was convicted of a crime and it is not true, that is libel.
Mediation generally costs $1,200 and both parties are responsible for paying it.
If you were writing on your own site or blog and can argue you are a media defendant, your state may have a pre-notice requirement that if not followed will get the case dismissed, as in FL. I think 710.01
You attorney is incompetent. You should get most of your money back.

1 Reply

@2415Tooltime,

I wrote another answer, but want to post this too as I would think a "rant" is covered by freedom of speech. Opinion is protected by the 1st amendment, freedom of speech. There are also only a few things that are libel pre se, where general damages do not have to be proven. These includes claiming someone commited a crime when they did not, claiming someone has a veneral disease, or saying they cheat their customers, maybe. Do some research, it is easy enough.

It is also only libel if it is not true. Truth is a complete defense.

How long did it take for the person to discover the libel and file? The statute of limitations is from date of publication, not when the plaintiff found out about it. Check that. You should be able to amend the answer if you have an affirmative defense under limitations or prenotice requirements.

And again, do not settle or mediate without finishing discovery. Mediation is always scheduled AFTER discovery. You can do discovery with written interrogatories, which is alot cheaper than a deposition. You can also demand documents. Often you can use the other parties own documents to prove your case.

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Negotiating over libel with an attorney who lied to me

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