Using an Expert Witness to Establish Damages in Business Defamation CaseBy HG.org
If defamation has occurred against a business, it may take steps to recover damages for the harm done to its reputation. An expert witness may be able to provide information about the availability of damages and the extent of damages. This information may be shared with the business as part of a consultation or as testimony provided during court.
Defamation DefinedDefamation results when one party makes false claims about another party that damages that party’s reputation. Defamation may be made against a person, but it can also be made against a business, political party, brand, organization or agency.
Pursuing a CaseA lawsuit may be filed against the party that made false claims against the business due to statements that have affected the business’ reputation or damaged the career or wellbeing of the owner or director of the business. In order to prevail on a claim of defamation, the business must establish that the statement that was made was false, was a statement of fact and that it was not privileged communication.
Types of DamagesThere a variety of types of damages that can apply in a defamation case, including the following:
Compensatory DamagesThese are actual damages. They represent the amount that the business has suffered. An award of these damages is meant to make the plaintiff whole and back to the position that he or she would have been at had the defamation not occurred. These damages include all damages the business has suffered related to the business, business property, trade or profession. This may include lost income or lost earning capacity in some cases. A business may be able to prove actual damages by showing that a business opportunity was lost because of the defamatory statement. It can also point to a history of solid sales and an extreme dip after the defamatory statement was made. An expert witness can try to quantify these damages by reviewing annual reports, checking account statements, sales and other documents that show such damages may have occurred.
Actual damages also include expenses that the business had to pay that are related to the defamatory statements. For example, if the business had to hire a public relations firm to handle the negative statements, it may seek reimbursement for these costs. Likewise, if the business hired a firm to review online messages and delete them, the business may try to get compensation for these expenses. The expert witness may rely on a number of different pieces of evidence including the business calendar to show that there was a decline in business appointments.
Presumed DamagesIn some jurisdictions, damages will be presumed because of the particular statements made. This is referred to as defamation per se. Such statements may include accusing someone of sexual misconduct, of having a sexually transmitted disease, accusing someone of committing a crime, accusing someone of being incompetent in his or her trade or business or making a statement that is likely to cause strong reactions in the community.
Presumed damages are those that are assumed to have arisen because of the publication of the defamatory statement. Even if the business is not able to directly prove a certain amount of damages that were the direct result of the defamatory statement, the court can still assume that the business has suffered harm to its reputation and can allow for monetary damages to compensate the business for this harm.
Calculating DamagesDamages can be difficult to calculate in these types of cases, making it even more important for an expert witness to be involved. A firm understanding of economics is necessary to perform an accurate analysis to determine the true extent of damages. Expert witnesses may compare the difference in the business’ actual earnings from its projected earnings. This is often completed by projected the revenue the business would have received but for the actions of the defendant.
Expert WitnessesBusiness defamation expert witnesses may have a variety of backgrounds that qualify them for this position. They may have a background in marketing, public relations, business development, economics, communications or reputation management. These individuals may have education or knowledge in various areas, too, such as branding, advertising, professional ethics, libel, journalism or promotion. An expert witness can help establish the level of damages so that the business can recover the maximum amount possible. Contact an expert witness in order to discuss your case in a confidential manner and to learn about he or she may help.
While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.