Volume XVII, Number V Summer 2014 Is That a Fact? Recent false, but defamatory, that is, it must ‘tend so to harm the reputation of another as to lower him in Defamation Decisions the estimation of the community or to deter third persons from associating or dealing with him.’”3 of the Supreme Court Stated differently, “merely offensive or unpleasant of Virginia statements” are not defamatory; rather, defamatory statements “are those that make the plaintiff appear by Dannielle Hall-McIvor odious, infamous, or ridiculous.”4 Determining whether a statement is one of fact 2. Cashion v. Smith: subjective statement, or opinion seems straightforward. A fact can be insinuation, or rhetorical hyperbole? proven false. An opinion depends on the speaker’s viewpoint and cannot be proven false. Although Defendants in defamation cases frequently claim describing the difference between fact and opinion that their statements are not defamatory because the is easy, differentiating between them in an actual statements were true, were statements of opinion, defamation case can be tricky. or were made in a protected context. The Supreme Court provided a detailed analysis of these defenses The Supreme Court’s recent defamation cases in Cashion v. Smith, 286 Va. 327, 749 S.E. 2d 526 provide much-needed help, offering guidance on (2013). In Cashion, the Supreme Court considered the elements of—and the defenses to—defamation whether a trauma surgeon’s allegedly defamatory claims. Although not marking a change in Virginia statements about an anesthesiologist’s treatment law, the detailed and fact-specific analyses in these Is ThaT a FacT? — cont’d on page 3 cases will help practitioners differentiate between fact and opinion in defamation cases. Table of Contents Is That a Fact? Recent Defamation Decisions 1. When is a statement defamatory? of the Supreme Court of Virginia . 1, 3 by Dannielle Hall-McIvor Letter from the Chair . 2 “Defamation” is “the offense of injuring a by Barbara S. Williams person’s character, fame, or reputation by false Attorney Blogs in the Wake of and malicious statements; the term seems to Hunter v. Virginia State Bar . 7 by Gail M. Deady and Lindsey A. Strachan include both libel and slander.”1 To state a claim View from the Bench—Judge Mediators: for defamation under Virginia law, a plaintiff What Happens When the Cape Comes Off . 11 “must show (1) publication, (2) of an actionable by Hon. B. Waugh Crigler (Ret.) statement with (3) the requisite intent.”2 “To Quit the Comparison, Already: Closing the Door on Remittitur? . 15 be ‘actionable,’ the statement must not only be by Robert L. Garnier Supreme Court of Virginia Civil Cases. 18 Dannielle Hall-McIvor is an Assistant City Attorney at the Virginia 33 Beach City Attorney’s Office. Litigation Section Board of Governors . Litigation News Summer 2014 Letter from the Chair • Barbara S. Williams This is my last column as the Chair of the them are not always prepared. Due to that Litigation Section’s Board of Governors. I’ve been fact, I thought it is worth mentioning here. As honored to serve as your chair. The litigation litigators we can become full of fear, which may section is the largest section of the VSB and our lead to procrastination. Always reach out for members have a wealth of experience. I’ve been help from someone experienced if this happens practicing law for over 26 years, and I’ve learned a to you. Build a network of colleagues you can few things along the way that I’d like to pass down trust and don’t take on projects that you know to other litigators. None of what you will read is will cause you not to fully prepare. new, but sometimes I wonder if others realize how their actions affect others. Here are “Eight Potential 4. Not doing what you say you are going to do. Bombs.” This adage gets violated every day. Have you ever been to a meeting and someone volunteers 1. Reading messages on your cell phone. to perform a task, then doesn’t do it? How about A cell phone is a small, powerful, hand-held the lawyer on the other side of the case that says, computer. But don’t have it out during a business “Your Honor, I will prepare an Order,” and then meeting, a luncheon appointment, or a client doesn’t do it? Or a client says they will pay an meeting. Please take an interest in the people agreed-upon fee, then doesn’t pay? Be realistic. you are meeting with. Stay in the present. It will Don’t volunteer to do anything unless you are help you get and keep clients. willing to actually do it. On time. As promised. You will find that you stand out from the crowd 2. Treating court personnel without dignity and if you stick to this one rule! respect. How do you treat the court reporter, judge’s 5. Thinking that someone will forget you made clerk, and bailiff when you are in the courtroom? a commitment or stating an inaccurate fact or How about the clerk’s office staff? Are you premise of law. dismissive or bossy? Do you ignore these human Clients, lawyers, and judges have memories like beings that you might be with for days or weeks elephants. If you think you can pull the wool during a trial? If you do, the judge and the jury over someone’s eyes on one occasion and go will notice. It will hurt your client. Also, you back to the same courtroom, opponent, or client will regret it when you need something from one and your behavior will be forgotten, think again. of these important players in the courtroom. Trial judges and appellate judges know which lawyers can be trusted and which cannot. No one 3. Attending court unprepared. forgets, even if you want them to. I’m sure every litigator reading this doesn’t need to be told to be prepared. But just in case, let me 6. Forgetting to thank those who help you. say that I have heard many a judge through the Always thank those that help you. If it is a small years complain that lawyers appearing before thing, you can thank them on the spot. If it is Barbara S. Williams was the 2013-14 chair of the Litigation Section a larger issue, or something important, write a and practices in Leesburg and Winchester. note. It is old fashioned, but sending someone 2 Litigation News Summer 2014 a thank-you note or writing them an email can we were rated below used car salesmen in make a huge impression. Even in this day and trustworthiness. Therefore, we need to make age, when we hear that people are going to sure as litigators that the people around us, the forget to how to write and only correspond with people of our own communities, know us. Many keyboards, we still are able to buy stamps and lawyers volunteer. We coach our kids in sports. use the US mail. Why not do it? We sit on boards of non-profits. We volunteer to feed the poor. When your neighbors and your 7. Not getting involved in bar work. community get to know you through your work A sure way to further your career is to get in the community, the public rating of lawyers involved in your state, local, or specialty bar. increases. Most people who regularly volunteer I learned more by being active in the VTLA in their community say that they get back a about being a good lawyer than I ever learned whole lot more than they give. in my office or in the courtroom. When you get involved in a bar association, you can’t go I know I am preaching to the choir on these wrong. You develop relationships that make it issues, but it is worth reminding people that we are easier to ask questions, get help, or learn from always on stage as litigators. Remember that others, the experience of others. You have access to from the lowest skilled staff in your office to the judges outside of the courtroom. You get to justices on the Supreme Court, are watching! learn how to be a leader. Thank you for allowing me to be your Chair 8. Not getting involved in your community. this year. I look forward to the Litigation Section’s The public has a dim view of lawyers in general continued good work with the bar and the public. F and litigators in particular. A few years ago Is That a Fact? “You gave up on him.” cont’d from page 1 “You determined from the beginning that he of a patient were “non-actionable expressions of wasn’t going to make it and purposefully didn’t opinion or rhetorical hyperbole, and whether such resuscitate him.”6 statements were protected by qualified privilege.”5 Immediately following the death of a patient The trauma surgeon made additional statements during surgery, the trauma surgeon criticized the to the anesthesiologist immediately after the anesthesiologist in front of other members of the surgery. In front of another nurse and doctor, the operating team. Among other statements, the trauma trauma surgeon told the anesthesiologist, “You just surgeon remarked: euthanized my patient.”7 “He could have made it with better resuscitation.” In his amended complaint,8 the anesthesiologist claimed that the trauma surgeon’s statements “This was a very poor effort.” constituted defamation and defamation per se. The trauma surgeon and his employer filed demurrers “You didn’t really try.” and pleas in bar, alleging that the trauma surgeon’s statements were “non-actionable expressions of 3 Litigation News Summer 2014 opinion or rhetorical hyperbole.”9 The defendants evidence that the defendant lost or abused the also asserted that the statements were qualifiedly privilege.