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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26822
Experience:  Began practicing law in 1992
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I recently presented a case in Small Claims Court, and the

Resolved Question:

I recently presented a case in Small Claims Court, and the defendant committed obvious acts of libel and character defamation. Although the judge questioned certain statements as describing as criminal behavior (to which the defendant readily agreed), nevertheless he allowed all of this testimony unchallenged and without proof as part of the public record.

I contacted an attorney and after citing a few cases in Washington State law, he said that our state has an absolute privilege for statements made in court. He said that because the judge allowed these statements, therefore they are protected and no charges of defamation of character can be filed.

The statements made were truly libelous and have caused financial and character hardships. Among other things, the defendant made false accusations of violations against human rights, and I don't understand how this sort of speech is "protected".

Is there someone who can help me with this? It seems there should be some guidance in the law which outlines what sort of speech is protected and what is not.

Thank you for your help.
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

Customer:

Thank you.

JD 1992 :

Can you rephrase your question? I agree with the statement made by your attorney and that position is the same across all states I am aware of but I'm not sure what you are asking.

JD 1992 :

Are you wanting to know the reasoning behind that privilege existing?

Customer:

I'm asking how false testimony can be given in court, especially testimony testimony that describes human rights violations on the part of the plaintiff, and still be protected speech. The audio transcript is being listened to in this city and in various parts of the country all with the same effect of damaging the reputation of an individual and the organization which this individual has charge of. It is a restatement in open court of similar false accusations being made for the past three years.

JD 1992 :

The reasoning behind this is that 1) courts do not want a person being afraid to present their case in court for fear of an additional lawsuit by the other side for statements made in court; 2) they want an end to litigation between the parties. If the court allowed the parties to sue each other for what occurred during the trial then there could potentially be a never ending cycle; and 3) if the testimony is blatantly and factually false, as opposed to an opinion, then there is the remedy of a charge of perjury. Even though perjury charges are rarely brought they are possible.

Customer:

I understand these points. However, I don't see how the judge should have proceeded with the hearing in a civil court when false and unproven criminal acts are described. I have written to the judge in this case to ask his reasoning for allowing such statements without proof being offered. No answer yet. Why is it that court records with libelous statements, are allowed to be published and greatly damage one's reputation far after the case is heard? Yes, perjury can be proved, but what then? I can't see how such actions achieve a fair settlement for all parties concerned.

JD 1992 :

Court records are public records. You could have asked that the file and transcript be "sealed" to prevent disclosure and the court would than have weighed the public's "right to know" and the open courts issues with the potential damage to your reputation.

JD 1992 :

You can ask the District Attorney in your area to investigate the perjury but this is a crime that is rarely prosecuted because it is hard to get a conviction. You have to prove that it was an intentional misrepresentation of a fact as opposed to a mistake or a difference of opinion.

Customer:

OK, but that horse is already out of the barn. What now? The defendants have been told by at least two attorneys that they committed defamation of character and that they should expect legal action. Another attorney thinks I am dragging my feet in not taking action on a clear cut defamation case. Do all attorneys know the law as you describe it?

JD 1992 :

Also, were you represented in the case by an attorney? Were the statements objected to when they were offered at trial?

JD 1992 :

I don't know how much other attorneys know but defamation is a case that is rarely pursued. Ask the attorneys who are telling you that you have a case if they are willing to take it on a % basis.

Customer:

The statements were made in Small Claims Court -- no attorney present. I objected near the end, asking how character assassination can be made part of a trial of this nature. The judge told me from the bench that he would examine his notes -- then nothing afterwards to answer my objection.

JD 1992 :

You have to make objections at the time of the statements for a judge to rule on them. A judge isn't going to (and isn't allowed to) make objections and rarely will exclude evidence unless a specific objection is made. You can object and then if the judge rules that the objection is sustained you move the court to strike the statement from the record and then it wouldn't be a part of the public record.

JD 1992 :

It also has to be a recognized objection with the basis made clear. In the example you gave the objection would be to relevance.

Customer:

I did not know I could make objections in this venue while the other party was speaking. I know that most of the accusations made had no relevance in this case. If I ask another attorney to take on this case for a % basis. is it most likely we will loose?

JD 1992 :

Please understand that I am not telling you I agree with what happened or even with the law, I'm just relaying what I know about this area. I'm pretty familiar with this concept because of a specific type of case I used to do a lot of across the country.

JD 1992 :

It's most likely that the attorneys whoa re telling you to sue won't take it on a %. Yes, it is most likely you will lose because of the immunity granted for statements made during a court proceeding.

Customer:

OK. Thank you for your time and information.

JD 1992 :

You're very welcome. I wish I could have given you better news but sometimes the law doesn't work that way and we have to give bad news.

JD 1992 :

By the way, if one of the attorneys will agree to take it on a % it doesn't hurt to let them do so. Just don't let them try to talk you into paying them to do it.

JD 1992 :

Anything else I can assist with?

Customer:

No thank you.

JD 1992 :

Best wishes to you. Please don't forget to leave a Positive Rating (of course I'd suggest Excellent) so I get credit for my work.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26822
Experience: Began practicing law in 1992
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