In Sasser v. State Farm Insurance Co., the Indiana appeals court addressed the contours of defamation law in the context of two statements that variously impugned an attorney’s physical appearance and professional abilities.
The plaintiff, an in-house lawyer for the insurance giant defendant, had a years’ long personality clash with a non-attorney claims adjuster. The plaintiff alleged the adjuster made many disrespectful comments about the plaintiff including the two statements that drove plaintiff’s defamation suit.
The challenged statements consisted of one concerning the plaintiff’s appearance; the other, her competence as a lawyer. The Court focused mainly on the latter claims agent’s assertion that “any competent attorney could get a defense verdict” after the plaintiff advised against taking a case to trial to company brass. The plaintiff argued that the adjuster’s statement was per se defamation since it imputed the plaintiff’s ability to perform as a lawyer.
The trial court disagreed and entered summary judgment for the defendants. Plaintiff appealed.
Affirming, the court first set forth the general principles of Indiana defamation law.
Defamation requires proof of a factually false statement about the plaintiff, published to a third party that tends to lower one’s reputation in the community or that deters others from associating with the person.
Defamation includes written (libel) and oral (slander) statements. Two species of defamation law include per se defamation and per quod defamation. The former applies to statements that are naturally harmful on their face and don’t require a plaintiff to prove special damages.
The four categories of per se defamation are statements that a plaintiff (1) committed a crime, (2) has a communicable disease, (3) is incompetent in trade or profession, and (4) exhibits a lack of integrity in performing employment duties.
Defamation per quod involves a statement that isn’t obviously defamatory but requires extrinsic evidence to establish its defamatory meaning. To succeed on a defamation per quod claim, the plaintiff must prove actual monetary harm attributable to the challenged statement.
For a statement to be actionable as defamation, it must contain objectively verifiable facts about the plaintiff. But where the speaker is merely expressing his/her subjective view, interpretation, or theory, the statement is not actionable. In addition, “[j]ust because words may be insulting, vulgar or abusive words does not make them defamatory.” [22]
Here, the appeals court agreed with the trial court that the two statements under attack did not directly convey a per se defamatory statement about the plaintiff. While allowing that individual defendant’s comment concerning the plaintiff’s appearance may be offensive, it wasn’t verifiably true or false and so didn’t rise to suable slander.
And while the adjuster defendant’s “any competent attorney” statement arguably implicated per se category (3) – by attributing an inability to perform employment duties – the court found the statement too nebulous to be verified as either true or false. The Court viewed this statement as the claims agent’s subjective opinion that a competent attorney could secure a certain result after a hypothetical trial.
Rhetorically, the Court asked how would one demonstrate the truth or falsity of such a statement? It then cited to a late-90s Seventh Circuit decision (Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998)) where the Court opined that “to say [plaintiff] is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.”
The Sullivan case relied on by the Indiana appeals court noted that the caliber of legal representation is inherently uncertain: it noted that excellent lawyers may lose most cases because they take on only challenging ones. Conversely, according to Sullivan, poor lawyers could win all their cases by only taking easy cases. [25].
What’s more: lawyers have strengths and weaknesses: some are good at some things, while poor at others. There simply isn’t a way to factually test an opinion concerning a lawyer’s aptitude. Here, since there was no way to corroborate the statement’s truth or falsity, it wasn’t factual enough to support a defamation claim.
The court also rejected plaintiff’s attempt to bootstrap the “any competent attorney’ statement into a claim that the plaintiff violated Indiana Rule of Professional Conduct 1.1 which specifically speaks to lawyer competence in representation. The Court found that since the plaintiff didn’t allege either the individual or corporate defendant didn’t say the plaintiff acted unprofessionally or improperly with respect to a specific, discrete legal matter, the plaintiff’s reliance on Indiana’s professional conduct rules fell short.
The court also rejected plaintiff’s per quod argument: that the statement’s defamatory content was established when the court considered extrinsic evidence. Because the statement did not impute anything false about the plaintiff that would tend to harm the plaintiff’s reputation, the statement was not defamatory per quod.
Afterwords:
This case illustrates in sharp relief the challenges a defamation plaintiff faces in a culture that vaunts freedom of expression and gives latitude for citizens to “blow off steam” in the private, employment setting.
Sasser also demonstrates that while a statement may be mean, offensive, and vulgar, it still will not rise to the level of actionable defamation if it cannot be objectively tested as true or false.
Qualitative, subjective statements about a lawyer’s abilities do not lend themselves to objective testing. As a result, in Indiana at least, such statements generally cannot support a defamation claim.