Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Tort – Defamation – Burden Of Proof

Tort – Defamation – Burden Of Proof

A bank employee who alleges she was defamed when her employer stated she was terminated for “job abandonment” does not get another chance to try her case after a jury rejected her claim, a Richmond U.S. District Court holds; the court also upholds the jury award of $3,278 to the bank on its counterclaim for unjust enrichment.

Plaintiff now seeks a new trial on her defamation claim on the basis that Jury Instruction No. 10 was confusing and misleading. That instruction stated in relevant part, “It is not necessary that the publication be absolutely true; substantial truth is all that is required. It is plaintiff’s burden to prove that the publication was false.” Plaintiff apparently reasons that the instruction permitted the bank to prevail by merely presenting enough evidence to convince the jury that the statement was only partially true, whereas plaintiff could have prevailed under this Instruction only if she demonstrated the statement was entirely false.

Plaintiff’s argument misses the mark because the Instruction accurately states Virginia law. The Supreme Court of Virginia has held that in trying to prove falsity slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is substantially true. Virginia’s highest court has also required that a defamation plaintiff carry the burden of proving falsity. Here, Instruction No. 10 properly reflected the state of the law.

Like it or not, the Instruction precisely represents Virginia’s approach to the amount of evidence needed to prevail on a defamation claim and which party must carry that burden.

Motion for a new trial denied.

Here, where plaintiff failed to move for judgment as a matter of law prior to the case being submitted to the jury, means the court denies her motion for judgment as a matter of law on the bank’s counterclaim for unjust enrichment.

Wynn v. Wachovia Bank Nat’l Assoc. (Spencer, J.) No. 3:09cv136, Dec. 24, 2009; USDC at Richmond, Va. VLW 010-3-007, 5 pp.

Leave a Reply