Recovering Your Costs

We wish we could assure you that the law provides powerful protection for victims of malicious defamation lawsuits. Unfortunately, that isn’t the case. You do, however, have a few options for fighting back and perhaps at least recovering your legal expenses.

Anti-SLAPP legislation

A SLAPP (Strategic Lawsuit Against Public Participation) is a meritless lawsuit intended to intimidate or silence critics. Anti-SLAPP legistlation provides strong protection against lawsuits that target discussion of matters of public concern or public interest. If you’re lucky enough to live in a state with anti-SLAPP legislation, that is likely your best option.

A typical anti-SLAPP statute requires the defendant to show that the lawsuit has no meaningful chance of succeeding at trial. If you succeed, the judge can immediately terminate the lawsuit and require the plaintiff to pay your legal expenses.

Filing an anti-SLAPP motion typically halts any further discovery until the motion has been resolved. In addition, anti-SLAPP legislation typically provides the right to an immediate appeal if the initial motion is not successful.

Washington passed new anti-SLAPP legislation in 2021, thanks in part to the efforts of our legal advisor, Bruce Johnson. Thank you for making us all safer, Bruce!

Recovering costs

Unlike most other countries, the United States generally does not require the losing party in a lawsuit to pay the prevailing party’s legal expenses. This means that if you don’t live in a state with anti-SLAPP legislation, being sued is very expensive even if you win.

Other than using anti-SLAPP legislation, there are three tools that might allow you to recover your costs:

  • Many states have a frivolous claims statute that allows the defendant to recover their costs in a frivolous lawsuit. Proving a lawsuit was frivolous can be difficult, however.
  • Federal rule 11 may allow you to recover your costs if you are the target of a frivolous lawsuit. In Washington, Civil Rule 11 serves a similar purpose.
  • In Alaska, Civil Rule 82 may allow you to recover some or all of your expenses.

Insurance coverage

Many umbrella, homeowners, and renters insurance policies cover defamation cases. If you think you’re at risk of being sued for defamation it’s worth checking your policy and possibly switching to a policy that provides defamation coverage if your current one doesn’t.

Be careful, though: many insurance policies are very restrictive and only cover “unintentional” defamation that was made while you were inside your house.

Punitive damages

In some states, you may be able to seek punitive damages under certain conditions. Washington does not generally allow punitive damages in tort cases.

Malicious prosecution

In very rare cases, you might be able to counter-sue the plaintiff for malicious prosecution after you win the original suit. You will need to prove that:

  • the lawsuit had no reasonable chance of succeeding, and
  • it was filed maliciously

Washington is fairly restrictive: malicious prosecution is only available as a tort claim in cases where someone was arrested or property was seized.

Criminal prosecution

It occasionally happens that information surfaces during a lawsuit that can subsequently be used to support criminal charges:

  • During discovery, the court might allow you to search the plaintiff’s email or other documents for material that is relevant to the lawsuit.
  • During the trial, both parties can be required to testify under oath about the subject of the suit.

There are some complicated issues here, including the 5th amendment protection against self incrimination.


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