Wis JI-Civil 2501

Question 3 (2) asks whether the statement made (published) by (defendant) was

defamatory.

A defamatory statement is one which: (1) is false, (2) is communicated (by speech)

(by conduct) (in writing) to a third person, and (3) tends so to harm the reputation of

another as to lower the person in the estimation of the community or deters others from

associating or dealing with the person. If you find that the statement was substantially

true, then the statement is not false. Slight inaccuracies of expression do not mean that

the statement is false if it is true in substance.1

The action of defamation is based upon the principle that a person’s reputation and

good name is of great value. Once such reputation and good name have been damaged by

statements of another person, restoration is virtually impossible.

It is not necessary that the defamatory statement be communicated to a large or even

a substantial number of persons. It is enough if it is communicated to a single person other

than the one defamed. Nor is it necessary that the statement be made (published) with the

intention to defame, for the intention of the speaker (author) is not material.

In determining whether (defendant) made or published a defamatory statement, you

should consider the whole context of the communication, giving the particular words of

defamation their natural and ordinary meaning.

(Plaintiff) has the burden of proof to satisfy you by the greater weight of the credible

evidence, to a reasonable certainty, that the statement made (published) by (defendant) was

defamatory.

(As to Question 4 (3), the damage question, give COMPENSATORY

DAMAGES, WIS JI-CIVIL 2516, and BURDEN OF PROOF, ORDINARY, WIS

JI-CIVIL 200.)

(As to Question 5 (4), express malice, give EXPRESS MALICE, WIS JI-CIVIL

2513.)

(As to Question 6 (5), punitive damages, give PUNITIVE DAMAGES, WIS

JI-CIVIL 2520.)

(As to Questions 5 (4) and 6 (5), give BURDEN OF PROOF, MIDDLE, WIS

JI-CIVIL 205.)

SPECIAL VERDICT - TRUTH OF THE STATEMENT RAISED AS A DEFENSE:

Question 1: Did (defendant) say (insert alleged statement, e.g., plaintiff is a thief)?

Answer: ______________

Yes or No

Question 2: If you answered “yes” to Question 1, then answer this question: Was

such statement substantially true?

Answer: _______________

Yes or No

[Note: In 1986, the United States Supreme Court held that a private-figure plaintiff

who is suing a media defendant for publishing a defamatory statement of public

concern cannot recover damages without showing that the statement at issue is

false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, (1986). The holding

in Philadelphia Newspapers, Inc. appeared to be in contrast, at least in cases

involving a media defendant, to Wisconsin common law, which placed the burden

that the statement was true on the defendant as an affirmative defense. Denny v.

Mertz, 106 Wis.2d 636, 661 n. 35, 318 N.W.2d 141 (1982). The resulting

uncertainty as to whether Denny v. Mertz applied to defamation actions involving

non-media defendants was resolved in Laughland v. Beckett, 2015 WI App 70,

365 Wis. 2d 148, ¶¶23, 26. There, the Court held that when the defendant is not a

media defendant, it is the defendant’s burden to establish that the allegedly

defamatory statement was substantially true. Id. at ¶¶23, 26. Philadelphia

Newspapers, Inc. v. Hepps, supra, involved a constitutional conditional privilege.]

Question 3: If you answered “no” to Question 2, then answer this question: Was

such statement defamatory?

Answer: _______________

Yes or No

Question 4: If you answered “yes” to Question 3, then answer this question: What

sum of money will fairly and reasonably compensate (plaintiff)

because of such defamatory statement?

Answer: $______________

Question 5: If you answered “yes” to Question 3, then answer this question: Did

(defendant) act with express malice in making (publishing) the

defamatory statement?

Answer: _______________

Yes or No

Question 6: If you answered “yes” to Question 5, then answer this question: What

sum of money, if any, do you assess against (defendant) for punitive

damages?

Answer: $______________

SPECIAL VERDICT - TRUTH OF THE STATEMENT NOT RAISED AS A

DEFENSE:

Question 1: Did (defendant) say (insert alleged statement, e.g., plaintiff is a thief)?

Answer: _______________

Yes or No

Question 2: If you answered “yes” to Question 1, then answer this question:

Was such statement defamatory?

Answer: _______________

Yes or No

Question 3: If you answered “yes” to Question 2, then answer this question:

What sum of money will fairly and reasonably compensate

(plaintiff) because of such defamatory statement?

Answer: $______________

Question 4: If you answered “yes” to Question 2, then answer this question: Did

(defendant) act with express malice in making (publishing) the

defamatory statement?

Answer: _______________

Yes or No

Question 5: If you answered “yes” to Question 4, then answer this question: What

sum of money, if any, do you assess against (defendant) for punitive

damages?

Answer: $______________