Cengage Advantage Books: Fundamentals of Business Law 9th Edition by Roger LeRoy Miller

Exercise 19

Orlando v. Cole
Appeals Court of Massachusetts, 76 Mass.App.Ct. 1112, 921 N.E. 2d 566 (2010).
FACTS In February 2005, 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's. After the alleged incident and before he had retained an attorney, Atwater approached Orlando and admitted that he had committed the act. 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. Before publishing the article, the reporters approached Garrick Cole, who was now representing Atwater, and asked for Cole's comments. Cole responded that the affidavit was "inaccurate" and called Orlando's actions "deceitful" and "fraudulent." The article further stated 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 in a Massachusetts state court, 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 Are Cole's statements that another attorney filed an "inaccurate" affidavit and engaged in "fraudulent" and "deceptive" conduct with regard to a case 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 by pointing out that "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 proven false in a trial. They were not comments simply presented 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.
FOR CRITICAL ANALYSIS-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?