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Friday, May 18, 2012

Defamation and Slander

Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation?

Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation.

To prove a case of defamation, the plaintiff must show:
  • 1. The offending party acted intentionally, and
  • 2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and
  • 3. The offending party's statement was false, and
  • 4. The offending party's statement caused some economic loss

For #4, the amount of lose required to be proven varies on the individual making the claim, and the type of damages sought. Generally, a business suing under a defamation cause of action is not required to prove damages -- it is understood that economic damages result in any untrue statements to could reasonably cause another person to do business elsewhere.

Key aspects of defamation to remember:
  • The statement must be false.
  • Merely because you don't like what the other party said, or you feel it was unfair, does not give rise to a defamation cause of action. The statement made must be false, and it must be more than a mere opinion.
  • The statement must be public.
  • All types of defamation require the offending party to utter their defamatory words to another. Just emailing, calling or writing to you is not enough. It must be documented and it must be to someone else.
  • The action must be intentional.
  • The offending party had to make his/her/their statement knowing it was false and intending to harm the plaintiff. Misquoting or inadvertently slandering another by omission or mistake does not give a cause of action under defamation statutes or common law.

The first step in a defamation case is the "cease and desist" letter -- or a "notice" letter. This letter, drafted by an attorney, puts the offending party on notice that they are either in danger of, or have already committed, some form of defamation. The letter should be specific, and it should indicate the action that gave rise to the complaint. After the offending party receives the "notice", any further defamatory acts on his/her/their part constitutes intentional conduct, per se, as they have been notified of their conduct regarding the plaintiff. It should be noted that, if the offending party, upon receipt of the plaintiff's notice, retracts their statement, or contacts to the plaintiff to explain their action in such a way as to remove "intentional defamation" from their conduct, the ability to show intent, and therefore a valid cause of action under defamation, decreases significantly. The law encourages this. The purposes of defamation lawsuits is to punish those that either intentionally defame others or refuse to stop egregious conduct. When a party is notified they have wronged the plaintiff, and after notification, stops and attempts to correct the malfeasance, a finding under defamation is much harder (although when the offending party's conduct is truly abhorrent, and slanderous or libelous, a finding may still be had...just for less damages).

Can punitive damages be had in a defamation case? Yes. Called an "intentional tort", defamation, and it's children torts, permit suing for punitive damages (called "special damages" in some jurisdictions), when the plaintiff can show direct, economic loss stemming from the defamation, no remedial action on the part of the offending party when put on "notice", or the conduct continued after being put on "notice", and the plaintiff is not in a special category that limits or removes the right to sue for punitive damages (public figures, for example).

If you are not eligible for punitive damages, what relief can you get? In a defamation case, the primary relief is equitable -- it's called an injunction. An injunction is a court order telling a person, group, or organization to "do" something. In this case, the court would order the offending party to stop their conduct, and possibly publish a retraction. Additionally, if the plaintiff suffered economic loss, including attorney fees, the offending party could be made to pay that amount back to the plaintiff (not punitive..strictly reimbursement for documented loses).

When is a false statement more than an opinion? Opinions do not give rise to defamation suits. No matter how insulting or frustrating an opinion may be -- when an offending party states a private opinion, they are protected under the 1st amendment. But how far can a statement go, and still be considered an opinion?

Generally, the court looks at these factors:

  • 1. Is the statement an overt fact? (i.e. Sam broke into my store and stole my shovel.)
  • 2. Would a reasonable person believe the statement to be fact? (i.e. I used the placement agency before, and have years of experience in consulting work. The placement firm is dishonest and mistreats its applicants.)

Remember, because much of defamation law is controlled by common-law (meaning, the scope, reach, and interpretation is created by cases heard and decided in court, not statutes passed by an elected assembly), application of defamation laws vary widely from jurisdiction to jurisdiction and state to state.

Do you need assistance with a cease and desist letter? Have you received a notice from another attorney? A phone discussion is free, and a thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!

Sean R. Hanover, Esq
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Sunday, May 6, 2012

How to win a B2 visa application interview

How to win a B2 visa application interview:

This post really applies to individuals who have been denied a B2 visa in the past. For a full list of US Consulate criteria for passing a visa interview (for non-immigrant visas -- all types), see

Of course this list is NOT a substitute for talking to an immigration attorney (that would the Hanover Law firm). Additionally, this has NOTHING to do with out-of-status, or illegal immigration. This only applies when you are attempting to get a visa at an overseas US consulate.

Non-immigrant visa application questions you should have answers to (specifically for B1, B2, but actually for ALL non-immigrant visas):

Family Situation

1. Discuss any living, immediate, family members (brothers, sisters, mother, father, children, spouse, etc.) Specifically, name, age, living address, contact information (phone/email), and nationality. Indicate the level of closeness with these family members.

2. Indicate if your family owns property in any country (i.e. family home, estate, etc.). If so, what address, and who manages this.

Personal Situation

1. Discuss your current living arrangements. Specifically, address, phone number, landlord, rent, other roommates (and their contact information), and duration at this location. If under 3 years, please provide the same information for your last residence immediately preceding this the one in which you currently live.

2. Discuss your job. Who employs you (name of organization, amount of income, address, contact information)? A letter from your employer would be helpful (I believe you said you have a job at a resort, but Dr. Kornylak indicated that you also worked at a Yoga center…anything showing employment ties – even unpaid – is fine).

3. Discuss your relationship to Dr. Kornylak. Why are you making this trip? How long have you known him? If he is not family, how did you meet him?

4. How much money do you have in savings? Will you need to work while you are in the US? (The consulate needs to know that you have plenty of funds to pay for your stay and return back in good order.)

5. What bank ties to do you have outside of the US? (Include address, bank statement, and contact information for the banks with which you did business).

6. Do you have any business ties outside of the US? (i.e. are you a partner, member, or shareholder in any company outside of the US)? If so, provide all the location/contact information for those ties.

7. Do you own any assets in Germany or India? Specific examples include cars, pets, professional tools, etc. If so, provide a detailed list showing the type of asset, how long you have had it, and where it is located. (Try to find some things of value that you own, and list them – the more you can show valuable things left behind, the more likely the consulate will believe you intend to return.)

8. Number of previous trips to the US? When? Duration?

Travel Plan

9. What is the duration of your planned visit (current trip)?

10. Provide copies of your airplane tickets for your anticipated travel dates (This is perhaps your strongest argument for a B2 visa; a person who has purchased a return airline ticket is not likely to throw that money away, and shows clear intent to…return! Be sure to get either trip insurance or a refundable ticket so if you departure date changes, you can modify the flight with only minimal impact.). Assume that a visa will take three weeks to process (ought to be significantly faster…but I like to be conservative).

11. Where do you plan to go (trip itinerary)? Be specific about what you are intending to do.

Questions about consulate interviews? Come see us! Initial discussions on the phone are free. A thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!

Sean R. Hanover, Esq
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