Cengage Advantage Books: Business Law Today, The Essentials 10th Edition by Roger LeRoy Miller

تمرين 19

Orlando v. Cole
FACTS Joseph Orlando, an attorney, was representing a high school student who had sued her basketball coach for sexual assault. The coach, Thomas Atwater, was apparently an acquaintance of Orlando. Before he had retained an attorney, Atwater approached Orlando and admitted that he had committed the assault. Atwater signed an affidavit to that effect and then made a full confession to the police. A few days later, Orlando spoke to two newspaper reporters, gave them a copy of Atwater's affidavit, and explained the circumstances under which Atwater gave the affidavit. The reporters then asked Garrick Cole, who was now representing Atwater, for comments. Cole responded that the affidavit was "inaccurate" and called Orlando's actions "deceitful" and "fraudulent." The newspaper published an article that quoted both Orlando and Cole, and also indicated that Cole would not say what he thought was inaccurate in the affidavit. Both Orlando's and Cole's comments were reported together in various publications. Orlando sued Cole for slander, alleging that Cole's comments were false, described conduct undertaken by Orlando in his profession and business, and imputed "an unfitness for or a misconduct in his office or employment." Orlando claimed that he had suffered harm to his reputation as an attorney as a result of Cole's comments. The trial court granted Cole's motion to dismiss the complaint, and Orlando appealed.
ISSUE Did Cole's statements that another attorney filed an "inaccurate" affidavit and engaged in "fraudulent" and "deceptive" conduct with regard to a case constitute statements of fact that give rise to a defamation claim?
DECISION Yes. The Appeals Court of Massachusetts reversed the trial court's judgment and held that Cole's statements were "reasonably susceptible of a defamatory connotation [implication]." The appellate court remanded the case to allow for a jury trial.
REASON The reviewing court reasoned that the dismissal was premature because "a statement is defamatory in the circumstances if it discredits a person in the minds of any considerable and respectable class of the community." The terms that Cole had used-"inaccurate," "fraudulent," and "deceitful"- implied professional misconduct. Further, those statements are capable of being proved false in a trial. The comments were not offered simply as opinions, nor did any cautionary language accompany them. They appeared to be based on undisclosed defamatory facts. A jury should be allowed to decide whether defamation had occurred.
CRITICAL THINKING-Legal Consideration Orlando sued Cole for slander. Why didn't he sue Cole for libel, given that the comments were reported in various news publications?