An interesting defamation case out of New York, involving the world of music and illustrating the burden of proof.
As explained here on various occasions, truth is a defense (a point sadly lost on many defense attorneys). Thus, the burden of proof is on the defendant to show the truth of whatever it is he said or published.
In one of our recent cases, the defendant falsely stated that our client had cheated customers. Throughout the case, no matter how many times I explained to defense counsel that it would be his burden to prove that my client cheated customers, he kept responding, “you’ll never be able to prove that your client didn’t cheat customers.”
Really? My client took the stand and testified that he has never cheated a customer. That’s all it takes. The defendant then had the burden to prove the truth of the statement, and could not name a single customer our client had cheated. Judgment for plaintiff.
It is fascinating to see how many attorneys don’t understand the most basic rules of litigation. One of those rules is that testimony is evidence. Opposing counsel thought (based on what he told me) that since my client had been accused of cheating customers, he would have to bring in a parade of former customers to testify that they had not been cheated. And, according to the reasoning of opposing counsel, even that would likely be insufficient, because unless he produced 100% of his former clients, counsel would be free to argue that the customers he did not present had been cheated. He truly believed that my burden to show the statement was false was nearly insurmountable. He failed to understand that my client could simply testify to the fact, and that would then shift the burden to defendant to prove the truth of the statement. That, indeed, would have required some quantum of cheated customers to prove the point.
But watch for situations where neither side can prove the truth or falsity of the statement.
Tom Scholz and Brad Delp had been members of the band Boston. For reasons not important to the story, there had been some friction between Scholz and Delp. In March 2007, Delp killed himself by means of carbon monoxide poisoning. Thereafter, the Boston Herald newspaper published articles that claimed Scholz was responsible for Delp’s suicide.
Scholz sued for defamation, claiming it was a false statement to blame him for the death of Delp. But how can anyone truly know the reason for a suicide? Even if there is some triggering event that causes the person to take their life, that does not mean it was the reason. More likely, there are a number of factors that finally lead to the fateful decision. Stating the reason for a suicide will always, at best, be a matter of opinion.
That is the conclusion reached by the judge in this case. Neither side could prove the truth or falsity of their statements. Scholz could take the stand to testify that he was not the cause of Delp’s suicide, but how could he know? And since Scholz could not prove the falsity of the statement by the Boston Herald, the burden would never shift to the newspaper. The judge concluded that the truth or falsity of the statement could never be determined. He didn’t use this example, but to borrow an example from that era, it’s a little like blaming Yoko Ono for the break-up of the Beatles, when John Lennon isn’t here to testify. The judge ruled that why Delp killed himself will forever be an imponderable, making any statement about the suicide merely an opinion, and opinions are not actionable.
