Do I have a Case? | litigation lawyer utah nevada legal questions limited scope representation information attorney educate remedies straight answers

Do I Have a Case?

When attorney hears a sad story about something which has gone wrong in a person’s life, it often ends with the question of whether that person has a case, or has a “good” case. The most accurate answer from the attorney is very often “it depends”. Here is why attorneys give that answer so often, and why it usually requires at least 15 to 30 minutes of detailed consultation with attorney to get a reliable answer. Sometimes it takes an hour, or even an hour plus the attorney adding another hour or more of legal research afterwards.

These questions almost always come up in the context of what is called civil litigation. Unlike situations involving violations of criminal law, a civil case involves a private citizen having a claim against another person, business, or even in some circumstances a government entity or governmental employee. Civil litigation is all about finding a way to “right the wrong”, which usually includes getting financial compensation for the harm caused by wrongful actions inflicted upon the victim. A very brief description of non-monetary or "equitable" relief is below.

At simplest terms, a person or business which has suffered wrong doing has a case if two conditions are present:
First, what was done to them must of been wrongful in the eyes of statutory law or “common law” which allows a private person to file a lawsuit; and
Second, there usually must be some level of damages which can be measured in dollars, and which is large enough to bother the court with.

Civil litigation can also be used in some circumstances to obtain a non-monetary remedy. This is the time-honored remedy of "equitable relief", such as a court injunction, a court order requiring a person, business, or governmental player to either do something or to NOT do something. This area of the law is rather well-developed, and is the basis for family court protective orders and civil stalking injunctions.

One common enough example to illustrate this idea comes from the four or five inquiries this office receives every year from people who have caught others telling lies about them. Is it slander? Is it libel? Is it both? The broad category which includes these harms (civil “torts”) is generically called defamation.

A person who wants to prove a civil case in court must always prove every “essential element” of the offense. The wrongful conduct called defamation in Nevada, for example, requires that the person accused of defamation say, write, or otherwise communicate something about the alleged victim which is untrue. The statement must be made to a third party, which is obviously satisfied if it is published to the entire world in a newspaper or on an open-access web page. The false statement must be one regarding a fact or objective personality attribute of the alleged victim. "Liar" might be actionable, while calling someone a "jerk" will not. Statements of opinion usually escape being found wrongful in court because of this rule. Finally, most types of defamation require proof of damages caused by false statement, and not from any other reason.

The damages element is where most people offended by false statements learn that they don’t really have a case, regardless of how hurt their feelings are. Businesses can often prove financial damages in trade defamation cases by simply placing a chart of their daily gross revenues into a timeline which includes the date of the publication of the defamatory statement. A significant dip in the line, showing revenues lost shortly after publication of the falsehood, goes a long way towards proving financial damages. On the other hand, individuals in neighborhood disputes often cannot prove any financial damages.

Within the arena of defamation, Nevada has a fairly unique statute which allows victim of alleged defamation to obtain an injunction from the court fairly quickly, and even an order for the arrest of the perpetrator. The rationale appears to be preventing the offender from further repeating the defamatory statements. See NRS 31.480: Cases in which defendant may be arrested.

Like many other topics, though, the law of defamation and its damages includes what a defamed person would call a useful exception, and what an unsuccessful defendant would call a loophole. This special type of defamation is called “defamation per se”. Some types of lies are simply considered so outrageous that the law allows the plaintiff to be awarded “presumed” damages without proof of economic loss. Sometimes the court will award damages of only one dollar in cases of defamation per se. But once damages are awarded and the victim has won the case in that respect, then the door is opened up for an award of punitive damages. Many claimants ask for punitive damages which are hardly ever awarded at trial, but if the defendant’s conduct is bad enough, punitive damages awards can be substantial.

Just so you’ll know, defamation per se in Nevada include accusations that the victim is afflicted with a “dread disease” such as leprosy or AIDS or other sexually transmitted diseases, disparagement of a person’s professional qualifications or fitness to perform certain work (usually not including manual labor jobs), and in times past, accusing a married woman of sexual promiscuity. This last category of defamation per se has not been litigated in Nevada up to the Supreme Court level, but would most likely be extended to include such accusations against any married person if either gender if it were to come before the courts today.

So, do you have a case? Well, it depends on if the wrongful conduct satisfies all of the essential elements of what the courts call the “cause of action”, and whether that wrongful conduct has led to compensable damages or would entitle you to court-awarded equitable relief of some sort such as an injunction.