Plaintiff claims that Defendant harmed him/her by making one or more of the following statements: list all claimed per se defamatory statements. To establish this claim, Plaintiff must prove that all of the following are more likely true than not true:
1. That Defendant made one or more of the statements to persons other than Plaintiff;
2. That these people reasonably understood that the statements were about Plaintiff;
3. That these people reasonably understood the statements to mean that insert ground(s) for defamation per se, e.g., “Plaintiff had committed a crime”; and
4. That the statements were false.
In addition, Plaintiff must prove by clear and convincing evidence that Defendant knew the statements were false or had serious doubts about the truth of the statements.
If Plaintiff has proved all of the above, then he/she is entitled to recover his/her actual damages if he/she proves that Defendant’s wrongful conduct was a substantial factor in causing any of the following:
a. Harm to Plaintiff’s property, business, trade, profession, or occupation;
b. Expenses Plaintiff had to pay as a result of the defamatory statements;
c. Harm to Plaintiff’s reputation; or
d. Shame, mortification, or hurt feelings.
Even if Plaintiff has not proved any actual damages for harm to reputation or shame, mortification or hurt feelings, the law nonetheless assumes that he/she has suffered this harm. Without presenting evidence of damage, Plaintiff is entitled to receive compensation for this assumed harm in whatever sum you believe is reasonable. You must award at least a nominal sum, such as one dollar.
Plaintiff may also recover damages to punish Defendant if he/she proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud.
If a statement needs an explanation to show why it is defamatory to a particular plaintiff (libel or slander per quod), then the judge will include instruction number 3 under liability as set forth above. However, if the statement needs no explanation to show that it is defamatory, such as accusing plaintiff of a crime or making statements that tend to injure the plaintiff in respect to his profession or trade, then the statement needs no explanation to show that it is defamatory (defamation per se).
Courts distinguish between false statements of fact and statements of opinion, because a false statement of fact is an essential element of a claim of defamation. Opinions are protected by the First Amendment.