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Telling it like it is in your lawsuit

Question

I may need to file a lawsuit against a former friend of mine for breach of contract. He cheated me out of thousand of dollars because of his lies and outright fraud. However, I am very concerned that he may counter-sue me for defamation if I say certain things in my suit, even though everything I say is true. Will I have a problem here?

Mindy M.
Almaden Valley

Dear Mindy:

Generally speaking, the statements of judges, attorneys, parties, witnesses and jurors made in relation to a judicial proceeding are absolutely privileged against suits for defamation. California Civil Code §47(b). Smith v. Hatch (1969) 271 C.A.2d 39, 46. This is part of the "litigation privilege" and it means that you have a lot of latitude for free speech in judicial proceedings so that your case may be heard and your rights protected.

The litigation privilege is not limited to statements made during a trial or other proceeding, but it may extend to steps taken before the suit is filed, or afterward, provided the statements have some relation to the suit.

In Obos v. Scripps Psychological Associates (1997) 59 C.A.4th 103, 108, statements in a custody battle by a court-appointed psychologist concerning the mother's boyfriend were privileged, even though the boyfriend was not a party. And in Mission Oaks Ranch, Ltd. v. Santa Barbara (1998) 65 C.A.4th. 713, 726, a consultant's Environmental Impact Report submitted to the county considering a development project was absolutely privileged under the litigation privilege.

The litigation privilege also may extend to your attorney's letters written in connection with an imminent lawsuit. Generally speaking, an attorney's letter asserting a claim and urging a settlement prior to a suit is privileged and thus not subject to a defamation action. Lerette v. Dean Witter (1976) 60 C.A.3d 573.

The litigation privilege is not limited to statements made during a trial or other proceeding, but it may extend to steps taken prior to or after the trial itself. Pretrial depositions, discovery proceedings, and attorney's statements made during extra judicial investigation or preparation all may well be subject to the litigation privilege.

You may also be protected against defamation suits when it comes to statements made during arbitration proceedings, grand jury proceedings, and other quasi-judicial proceedings.

Of course, with every rule there are exceptions or qualifications. When it comes to the litigation privilege, a statement generally must have some reasonable relevance to the subject matter of the action. In the 1997 Obos case referred to above involving a child custody battle, statements made by a court-appointed psychologist to the mother's attorney and therapist that the mother's boyfriend had been dishonorably discharged from the service and fired from his job for dishonesty were found to meet the relevance test.

So, Mindy, you can see that you have a lot of freedom of speech when it comes to pursuing your claim in court, although of course this freedom is not unlimited. Generally speaking, you should have no problem in asserting your claim with the court.