Quote:
Originally Posted by jjjou812
Here is the first definition I located providing the elements of the claim and a cite to the Restatement of Torts. Do you have anything showing the Plaintiff does not have to prove the statements were false?
Elements
In order to establish a prima facie case of defamation, a plaintiff must prove:
a false and defamatory statement by defendant concerning the plaintiff;
an unprivileged publication to a third person;
fault, amounting to at least negligence; and
actual or presumed damages.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459 (1993)(citing Restatement (Second) of Torts, § 558 (1977)).
If the defamation tends to injure the plaintiff in his or her business or profession, it is deemed defamation per se, and damages will be presumed.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 483-84, 851 P.2d 459 (1993).
Example Cases
Proof
Whether a statement could be construed as defamatory is a question of law
Whether a statement is capable of a defamatory construction is a question of law. Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223, 1225 (1981). A jury question arises when the statement is susceptible of different meanings, one of which is defamatory. Id.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 483-84, 851 P.2d 459 (1993).
Whether a statement is true/false is a question of fact
Accordingly, a jury must be allowed to determine whether the statement has any “basis in truth,” Wellman, 108 Nev. at 88, 825 P.2d at 211, since the truth or falsity of an allegedly defamatory statement is an issue of fact properly left to the jury for resolution. Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 413, 664 P.2d 337, 343 (1983).
Posadas v. City of Reno, 109 Nev. 448, 453, 851 P.2d 438, 442 (1993)
You're right, Postle will have to prove the statements false. My understanding was more of a practical one. But what does that entail? Testimony is proof, and if Postle testifies that he didn't cheat, offers explanations for some of his actions and comes off credible, that may be enough. Whether a jury considers that sufficient proof will depend on how the defense responds. The burden of proof in a civil case is a "preponderance of the evidence." What that amounts to is that Postle loses if the jury isn't sure. If they think it more likely than not that Postle did not cheat, then he successfully proved that point. So if he comes off well, the defense will have the burden of reducing his credibility or proving him a liar. And in this case, that can get very complicated because there are no witnesses who can claim they saw him cheat, or claim he had a reputation as a cheater.
The allegations against him derive from an analysis of his results and of interpretations of videos of him playing. But none of the videos show him outright cheating--they show him making plays that the defendants consider strange. Making bets and raises or calling bets in not cheating--it's part of the game. Looking at one's phone while playing poker is not cheating. Showing one's hand at showdown and winning or losing the pot is not cheating. Nobody in the videos called him out for cheating. None of the "expert analysis" of the announcers raises the issue, in fact, they laud him as a great player. The defendants are on record claiming
the videos prove he cheated. In fact, Postle doesn't have to prove he isn't a cheater, all he has to prove is he wasn't a cheater
in those videos. He can play these same videos as proof he wasn't cheating. The jury will see them and not see cheating. Postle would probably have a harder time proving he wasn't a cheater if there were no videos. The defendants unwittingly made it easier for him to win by basing their claims on narrow events--what was seen in the videos. And the videos will actually help prove his case--unless the defendants can convince the jury otherwise. And that is a very tall order. Defense: "Don't believe what you saw, accept our expert analysis of this complicated poker hand as prove he's a cheat." or, D:"His win rate was highly unlikely." Plaintiff: "How unlikely?" D:"One in ten million." P:"What are the odd of winning the lottery?" D:"One in ten million." P:"Are lottery winners cheats?" And I'll bet you dollars to doughnuts that the plaintiff will get at least one defendant to admit that it's
possible that Postle did not cheat.
Also, the lawsuit claims libel and slander
per se. That reduces his burden to show damages, as being called a cheat is damaging to one's reputation on its face. He can win this case without showing monetary damages. But if he makes his living off of poker and can't get a game now, he can possibly also collect for loss of earnings.
For what it's worth, you cited a lot of Nevada cases. There are probably some differences in California.