Compelling a defamation lawsuit, intentionally

[Sunny_Day]

What is the name of your state? Texas

I'm about to publish a book that will contain some allegations of crimes having been committed by someone I knew 14 or so years ago. They happened in 2005 and 2006, and were against me. There may or may not be criminal exposure (to them), but I'm not the DA, so that's not my focus. If it happens, great. Don't get me wrong about that. I gave the DA the opportunity to take action at that time, and they passed, so why bother now. They're not on the list of protagonists in this story anyway, so...

All my civil legal remedies have long since expired, so I can't sue the other party. But I can compel testimony from them if they want to roll the dice on suing me for defamation. That testimony is really all I want.

Is this completely unheard of? I understand the risks. I understand the potential costs. That's not what I'm asking about. Has anyone ever heard of this as a strategy in order to indirectly compel testimony?

Thanks so much-

 

[Taxing Matters]

Is this completely unheard of? I understand the risks. I understand the potential costs. That's not what I'm asking about. Has anyone ever heard of this as a strategy in order to indirectly compel testimony?

Thanks so much-

If the person sues you for defamation then you might get the testimony you seek. If there is any risk of criminal prosecution and the answers might expose him to that risk, however, the person may exercise his Fifth Amendment right to remain silent and refuse to answer your questions. Sure, the judge would likely instruct the jury that they may infer the answers would not be in his favor, and that might cost him the lawsuit, but you'd not get the answers you are looking. There is also the reality that the answers he would give are not the answers you are looking to get. He might lie or he might simply remember things differently than you do.

Of course in order to chase that chance that you might get testimony you want there is the risk you take that you could lose the lawsuit and end up owing this person money, perhaps a lot of money, at the end of this. And that doesn't count the legal costs you'd incur, which in a defamation lawsuit could be considerable.

If what you are hoping for is some kind of admission in open court that this person did the things to you that you say he did, I think you'll be disappointed. He wouldn't sue you for defamation if he was planning on admitting that you said was true, after all.

 

[westside]

You'd gain more by spending the energy on getting past those that harmed you at this point, IMO. You're allowing them to steal moments of your life every day.

 

[PayrollHRGuy]

If there is any risk of criminal prosecution and the answers might expose him to that risk, however, the person may exercise his Fifth Amendment right to remain silent and refuse to answer your questions. Sure, the judge would likely instruct the jury that they may infer the answers would not be in his favor,...

Does Griffin v. California, 380 U.S. 609 (1965) not extend to civil proceedings?

 

[Zigner]

A self-published book by a disgruntled person isn't likely to get much traction anyway.

 

[adjusterjack]

I'm about to publish a book that will contain some allegations of crimes having been committed by someone I knew 14 or so years ago. They happened in 2005 and 2006, and were against me.

Please tell us who this person was and what the alleged crimes were that occurred over a period of a year or two.

If you are willing to reveal them in a book you might as well reveal them here and our panel of experts from Miskatonic University will opine on your chances of success.

 

[quincy]

What is the name of your state? Texas

I'm about to publish a book that will contain some allegations of crimes having been committed by someone I knew 14 or so years ago. They happened in 2005 and 2006, and were against me. There may or may not be criminal exposure (to them), but I'm not the DA, so that's not my focus. If it happens, great. Don't get me wrong about that. I gave the DA the opportunity to take action at that time, and they passed, so why bother now. They're not on the list of protagonists in this story anyway, so...

All my civil legal remedies have long since expired, so I can't sue the other party. But I can compel testimony from them if they want to roll the dice on suing me for defamation. That testimony is really all I want.

Is this completely unheard of? I understand the risks. I understand the potential costs. That's not what I'm asking about. Has anyone ever heard of this as a strategy in order to indirectly compel testimony?

Thanks so much-

First, here is a link to defamation laws in Texas:
https://statutes.capitol.texas.gov/Docs/CP/htm/CP.73.htm

I see a few flaws in your thinking. One flaw is that, should you publish a book that is read and a defamation suit over its content results, YOU as defendant in the suit will have the burden of proving what you wrote is true (or pure opinion). The plaintiff needs to show only that statements were published about him, the statements are claimed by the plaintiff to be false, the statements were published with negligence, and there has been harm to his reputation.

The plaintiff does not have to prove falsity. The plaintiff presents evidence that statements were published. The court determines whether the statements are per se defamation or the jury determines if the statements have a defamatory meaning when taken in context.

Another flaw is that self-published books need distribution and readers.

If you write a book, name names, and have enough money to publish the book, and you are sued over its content, you should prepare yourself to pay thousands more to defend against a defamation suit - and prepare yourself to lose.

I personally think your idea is a bad one and unlikely to have the results you desire.

 

[zddoodah]

I'm about to publish a book

As in self-publish? Or do you have an actual publishing company that is going to publish it?

Is this completely unheard of?

I'm not exactly sure what "this" refers to, but nothing you wrote to this point in your post is unheard of.

Has anyone ever heard of this as a strategy in order to indirectly compel testimony?

I doubt it. Publishing a book for the sole purpose of goading someone into suing the author for defamation so that the subject of the book can be deposed is beyond ill-advised.

If the person sues you for defamation then you might get the testimony you seek. If there is any risk of criminal prosecution and the answers might expose him to that risk, however, the person may exercise his Fifth Amendment right to remain silent and refuse to answer your questions. Sure, the judge would likely instruct the jury that they may infer the answers would not be in his favor

If the plaintiff asserts the 5th A, that would almost certainly first happen during a deposition. The defendant would move to compel, and the court would probably dismiss before the case ever went to trial (I skipped a couple steps, and it would depend on what other evidence might exist, but you get the point).

Does Griffin v. California, 380 U.S. 609 (1965) not extend to civil proceedings?

Don't know. I can think of rationale for either result, but this is one of many reasons why the case probably would never get to trial.

 

[quincy]

The case could go to trial for defamation (although most cases will settle) but Sunny_Day is unlikely to get the result she intends.

If a prosecutor found no crime or crimes were committed or worth pursuing 14/15 years ago, the same allegations of crimes published in a book today will, more likely than not, be claimed defamatory now.

I see a good chance of Sunny_Day walking away from any defamation suit with a bank account seriously drained.

 

[Taxing Matters]

Does Griffin v. California, 380 U.S. 609 (1965) not extend to civil proceedings?

No, it does not. The considerations when invoking the Fifth Amendment in a civil case are different than in a criminal case because there the party is facing the power of the state in trying to convict him/her on that offense. In a criminal trial instructing the jury that it may make negative inferences from the invocation of his right to remain silent would undercut the right and make it easier for the state to convict him/her.

But in a civil proceeding, a party could use the Fifth Amendment to game his civil case, allowing him to avoid having to to testify to things that would adversely affect the civil proceeding. As the Fifth Amendment only prevents use of the testimony in a criminal case, to allow a party to use it in a civil case where the right is not intended to apply is a problem. Still, forcing him to testify against himself would allow those statements to be used against him later in a criminal proceeding. So a balance is struck in the case law. He may still invoke the Fifth Amendment right, but unlike in a criminal proceeding a jury may be instructed that the jury may (but is not required to) infer that the answers would adverse to him. The U.S. Court of Appeals for the Eighth Circuit explained it this way:

Although the privilege applies in both civil and criminal proceedings, the Supreme Court has viewed the assertion of the privilege differently depending on whether a civil or criminal proceeding is involved. In criminal proceedings, the prosecution is prohibited from commenting on the accused's silence, and the trial court is forbidden from instructing the jury that the defendant's invocation of the privilege may be used in the jury's consideration of the guilt or innocence of the defendant. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). By contrast, the Supreme Court in Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810 (1976), stated “that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”​

Cerro Gordo Charity v. Fireman's Fund Am. Life Ins. Co., 819 F.2d 1471, 1480 (8th Cir. 1987)

And that same principle still applies today. This is from the most recent case I could find, issued just over two months ago:

As to the claim of error, the district court advised the jurors that they “may, but are not required to, infer” from Greer's invocation of the privilege that his “answer would have been adverse to [his] interest.” D. Ct. Doc. 153 at 15. This instruction was an accurate statement of the law and was not materially different from the adverse inference instruction we approved in Brink's.​

​

Mirlis v. Greer, 952 F.3d 36, 44–45 (2d Cir. 2020). There are some limits to this, however, as the same court explained in 2017:

The district court gave the following instruction as part of its final charge to the jury:​

[F]rom the plaintiff’s invocation of the Fifth Amendment, you may draw certain conclusions but are not required to do so. Specifically, you may infer that the plaintiff’s answers at her deposition, if she had not refused to answer, would have been “yes” to the questions asked, if she had not invoked the Fifth Amendment. You may, but are not required to, draw these inferences against the plaintiff when you are evaluating her credibility, and you can give these inferences whatever weight that you wish or, if you choose to give it no weight, you can do that.​

​

J. App’x 642–43. The instruction accurately states the law insofar as “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Such adverse inferences are appropriately admitted, however, only if they are relevant, reliable, and not unduly prejudicial. See Brink’s Inc. v. City of New York, 717 F.2d 700, 710 (2d Cir. 1983).​

Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 170 (2d Cir. 2017). That last sentence is a reflection of the general limits to admissible evidence found in the Federal Rules of Procedure.

 

[Zigner]

Excellent post, TM. Very thorough.

 

[Taxing Matters]

If the plaintiff asserts the 5th A, that would almost certainly first happen during a deposition. The defendant would move to compel, and the court would probably dismiss before the case ever went to trial (I skipped a couple steps, and it would depend on what other evidence might exist, but you get the point).

That might well be the result. But I don't see that as the result in all cases, as you yourself acknowledge by saying that it would "probably" get dismissed and that it would matter what other evidence existed, etc. Indeed, the trial court in the Woods case I cited in my earlier reply gave the adverse inference instruction regarding the plaintiff's use of the privilege in depositions. But certainly it is a possibility, and one worth pointing out for the OP.

 

[Taxing Matters]

Excellent post, TM. Very thorough.

Thank you. I'm a bit familiar with this principle as it comes up from time to time in civil tax cases, either because the activity that generated the income at issue was criminal or because the taxpayer's answers might expose him/her to a risk of prosecution for tax evasion or tax fraud.

 

[Taxing Matters]

Please tell us who this person was and what the alleged crimes were that occurred over a period of a year or two.

Please do NOT name names here. That would be a bad idea.

If you are willing to reveal them in a book you might as well reveal them here....

The flaw in your thinking Jack is that the OP is seeking information to determine if it is worth going forward to publish the book given the risk of a defamation claim. He or she has not yet fully committed to publishing the book and making the defamatory statements before the decision is made would be foolish.

 

[Maymee]

You’ve been given sound advice here. I only want to add that, as I read your post, a Confucius quote kept replaying in my mind; that is, “Before you embark on a journey of revenge, first dig two graves.”

I understand being hurt so deeply, be it physically or emotionally, you want to make others pay for their sins but there is so much truth to this quote. What you are planning to do will backfire horribly and you will wind up in a much worse place; emotionally at the least, financially at the worst.

There is power in silence. Find your strength and then find a support group. Please.