RISC Hold That Phrase “Smoking Gun” Is Not Slander Per Se

| Jul 5, 2013 | Firm News

In a long-running dispute arising from the dissolution of a law firm, the Rhode Island Supreme Court has held that the phrase “smoking gun” is not slander per se, that a claim for tortious interference with contract requires a quantification of damages and that the trial court can grant a new trial under Rule 59 based on errors of law committed when ruling on a Rule 50 motion.

Plaintiff and defendant were former partners in a law firm that split apart and resulted in two Superior Court matters, including a dissolution action and a claim for slander and tortious interference with contract, among other claims (“the tort suit”).  Plaintiff alleged, inter alia, that he had been damaged because defendant had told a firm client that a letter plaintiff had sent to the client and copied to an opposing counsel was a “smoking gun.”  The tort suit went to trial and the trial justice granted defendant’s Rule 50 motion because plaintiff had failed to prove damages as to any claims and because the phrase “smoking gun” was not slander per se.  Plaintiff moved for a new trial based on alleged errors of law the trial court had committed in deciding the Rule 50 motion.  The trial court held that it could not address those purported errors of law in a new trial motion.

As a initial matter, the Supreme Court said that Superior Court was incorrect when it said it could not address alleged errors in a Rule 50 ruling in the context of new trial motion.  However, it said plaintiff still failed to prove his claims.

The Court reviewed the elements of a claim for tortious interference with contract.  The plainitff must prove the existence of a contract, the defendant’s knowledge of the contract, the defendant’s improper interference with the contract and resulting damages.  The possible damages include the pecuniary loss of the benefits of the contract, consequential losses for which the interference is a legal cause, and emotion distress or reputational harm, if they are reasonably expected to result from the interference.

The Court said that plaintiff’s primary proof of damages was an exhibit that purported to identify lost revenue after plaintiff left the firm.  However, that exhibit had been excluded by the trial justice in the dissoulution case and plaintiff had failed to appeal that ruling.  Moreover, the Court said the exhibit was of “dubious” evidentiary value because it failed to show whether the revenue described was distributed to other partners in the firm.

With respect to the defamation claim, plaintiff must prove a false and defamatory statement made by defendant, an unprivileged publication of the statement to a third party, the defendant’s negligence with respect to the statement, and damages, unless the statement is actionable irrespective of “special harm,” i.e., defamation per se.  The Court said to constitute slander per se the false statement must impute to the plaintiff a criminal offense, or a loathsome disease, or a matter incompatible with his business, trade, profession or office, or serious sexual misconduct.

The Court said the phrase “smoking gun” did not rise to the level of slander per se.  In this context, the phrase described the letter, not plaintiff himself.  Moreover, the phrase is defined as a “piece of…evidence that conclusively impeaches an adversary on an outcome-determinative issue or destroys the adversary’s credibility.”  The description of the letter does not fit into any of the categories of slander per se.

Bossian v. Anderson, 2013 WL 3337675 (R.I. July 2, 2013).



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