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I am so sorry to hear of this behavior. Whether or not the judge issues the order, remember that the person suspected of writing the defamatory letters has a right to respond in court and try to convince the judge that the work is not hers.
While expert evidence can be useful, the other side is able to present its own expert testimony in rebuttal, or have a lawyer cross examine or present contrary evidence.
Expert testimony that is not based on definitive testing (more definitive tests are things like DNA samples) are more subject to be refuted than those that are based on more "squishy" science.
Here's a NY Times article on this very subject:
This scientific skepticism has spawned many efforts by those involved in use of handwriting analysis to meet the scientific standards set by the Supreme Court in the Daubert case. Here's an example:
Thank you. Do you think there is another course of action that I should take?
An additional course of action might be a defamation lawsuit. False statements presented as fact (rather than as opinion) are considered creators of damage no less than someone negligently blowing up a building. One might have the same evidentiary issues as to handwriting analysis. But there are other methods that can be used, in concert. For instance, there can be DNA left from licking an envelope.
Another tack might be "tortious interference" with a business contract. Like defamation, its a civil lawsuit. But if the poison pen letters are interfering with business relationships, it is an additional item to use in a civil suit.
The problem with restraining orders, alone, is that the contacts can be made outside the protected zone. Someone can still post online, for instance, or put up posters on bulletin boards without necessarily violating the order.
Ultimately, it may be worth consulting a local attorney with a good track record in pursuing defamation cases (they usually can do the simpler tortious interference cases, too). If the case is strong enough, and there is a chance for a payday at the end, some lawyers will even take the case on a basis in which they only get paid if you win or settle. This is called "on-contingency:" representation. If you decide to pursue on-contingency representation, it is a good idea to ask upfront about it, so neither your nor a lawyer's time is wasted if the lawyer won't consider such cases.
If the judge accepts the document examiner's testimony, do you think the order will be enforced based on the two anonymous letter that were written with such malice? One of my clients who received the letter does approximately $125,000 gross sales a year with me. He continued to do business with me. Can I win in a defamation suit if there has been no financial loss?
It is hard to evaluate a case without being involved in it, since judgment requires knowledge of all facts and circumstances. Since this is a publicly-accessible legal information forum, we simply can't do that. It can only be done by one's own attorney who can confidentially analyze all documents, facts and applicable law precedents (court cases), protected by attorney client privilege. As I mentioned, this can't be provided on a legal information website that is publicly accessible.
That said -- it will be necessary to meet the "Daubert" test factors, in most instances. Some judges may be more lax than others, but it is the law of the land. If the other party contests the restraining order, then it will be necessary to argue the Daubert factors (please see the links above).
Yes, defamation and or tortious interference cases can be brought without precise measurable damages. Defamation, in particular, can cause pain and suffering.
But there are also reputational issues; if one can effectively argue reputational damage, then it is possible to make a case for actual damages based on reasonable values of reputation to future business opportunities.
Thank you for the information. Based on your feedback, if the judge does not enforce the order, I will proceed with a civil lawsuit.
Remember, that even with a restraining order, there are technical ways around it, as noted. So the lawsuit should remain on the radar -- especially if the poison-pen writer finds a way around the order on purely technical grounds.
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