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In writing a civil suit complaint, is it best to state the action
of an employee and/or defendant as:
XXX allegedly stated that "blah blah blah."
or
XXX stated "blah blah blah."
Also, what if one does not recall the exact words? Should one write:
XXX [allegedly] stated "blah blah blah."
or
XXX [allegedly] stated "blah blah blah," or used similar words to convey
the same meaning.
TIA...
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z wrote:
In writing a civil suit complaint, is it best to state the action
of an employee and/or defendant as:
XXX allegedly stated that "blah blah blah."
or
XXX stated "blah blah blah."
Also, what if one does not recall the exact words? Should one write:
XXX [allegedly] stated "blah blah blah."
or
XXX [allegedly] stated "blah blah blah," or used similar words to convey
the same meaning.
TIA...
The word "allegedly" has the contectual meaning of, "the words have been
attributed to this person".
That is, we don't know for a fact that he actually stated them.
"Did" means, "we know for a fact mr. smith uttered these words".
That is, you have a recording, and/or witnesses who can testify to prove
your statement.
I would think your last offering would suffice. As you are not saying "for a
fact" but rather, "it is assumed".
If you have the undeniable evidence of fact, then be bold and brave and say
so. Otherwise, it's best to bluff your way.
Or say nothing at all.
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Which "last" one? This one, without the brackets around "allegedly"?:
XXX [allegedly] stated "blah blah blah," or used similar words to convey
the same meaning.
I was there and so were many others. However, this being
a school within a university, I have not lined up fellow student witnesses
yet,
in my hope that when asked, they will all reinforce each other under oath.
What I have is one person who says he will respond with the truth
if asked by school authorities to do so (apparently, they have never
done so to date, or else I believe I would have heard something
about it).
z wrote:
....
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
In writing a civil suit complaint, is it best to state
the action of an employee and/or defendant as:
XXX allegedly stated that "blah blah blah."
or
XXX stated "blah blah blah."
This will depend on why the pleader makes the particular allegation -
in the example above, whether what the pleader wants the court to
conclude (if the allegation referred to were proven) is that xxx said
"blah blah blah" compared with whether the pleader wants the the court
to conclude (if the allegation referred to were proven) that xxx was
"alleged" by someone to have said "blah blah blah".
Also, what if one does not recall the exact words?
Should one write: XXX [allegedly] stated "blah blah
blah" or XXX [allegedly] stated "blah blah blah,"
or used similar words to convey the same meaning.
Your other postings suggest that your question above is basically how
to allege a claim for "slander" and, if so, (though you seem not to be
aware of this) you are raising by your last phrase a (with respect to
"the law of defamation") controversial but arguably not fully settled
question of Calif. law. In summary:
As a general matter, a plaintiff seeking to recover damages by reason
of defendant's alleged "slander" should, insofar as practicable,
allege the _exact_ language complained of that plaintiff claims
constitute the "slander" complained of.
The "controversial but arguably not fully settled" point in this
respect referred to is that though one will be able to find some
Calif. caselaw to the effect that the exact/identical words need not
be alleged, _if_ something very close to the in haec verba statement
alleged to be slanderous is alleged, this question (how exact must the
allegedly defamatory quotation ascribed to defendant be?) has been
ground for sometimes contentious/lengthy (and, hence, also sometimes
expensive) litigation.
[ see cautionary on related posting ]
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Re legal ontroversy:
Ugh, nasty, I was afraid of that. It's been 5 months already
and (alas, perhaps, for me) there was no tape recorder.
Still, I -- I mean, the prospective plaintiff-- has it almost to the word
if not exact,
since the plaintiff went home and wrote the sentence and following
sentence fragment down the same day. It was issued making a kind of "jolt"
in the class, so I expect others will recall it as well, although perhaps
not to the exact word, but probably to the meaning, with
the exceptions being that some witnesses in the class were apparently
politically biased and would not care to recall the truth, even if
they are aware of it; and that since most of the witnesses are ongoing
students in the program, none of them have so far stepped up and offered
to help document the statements made with affidavits (aka de facto
witness intimidation); one of them (an immigrant from an eastern bloc
communist country) has conveniently dis-remembered the incident in question,
although she was able to tell the plaintiff off the side that the experience
she saw in the class was no different from what she witnessed in
her home country.
The question of "allegedly" was put there so that no one (ie, the prof)
could come back and countersue.
It sounds like the plaintiff has a choice: either go with his best
recollection
and let minor details take care of themselves (and possibly risk
a specious countersuit), or go with
"allegedly" and give the defense a big legal bone to gnaw on.
I define "specious" as being a countersuit based on a falsehood, ie,
that someone would sue the plaintiff for stating falsely that she made a
statement
when she actually did make the statement (and perhaps find one or two
syncophant students of the colored nose variety to back her up ;-).
(I think this possibility is somewhat remote, but mention it here
for completeness' sake.)
On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
This will depend on why the pleader makes the particular allegation -
in the example above, whether what the pleader wants the court to
conclude (if the allegation referred to were proven) is that xxx said
"blah blah blah" compared with whether the pleader wants the the court
to conclude (if the allegation referred to were proven) that xxx was
"alleged" by someone to have said "blah blah blah".
Your other postings suggest that your question above is basically how
to allege a claim for "slander" and, if so, (though you seem not to be
aware of this) you are raising by your last phrase a (with respect to
"the law of defamation") controversial but arguably not fully settled
question of Calif. law. In summary:
As a general matter, a plaintiff seeking to recover damages by reason
of defendant's alleged "slander" should, insofar as practicable,
allege the _exact_ language complained of that plaintiff claims
constitute the "slander" complained of.
The "controversial but arguably not fully settled" point in this
respect referred to is that though one will be able to find some
Calif. caselaw to the effect that the exact/identical words need not
be alleged, _if_ something very close to the in haec verba statement
alleged to be slanderous is alleged, this question (how exact must the
allegedly defamatory quotation ascribed to defendant be?) has been
ground for sometimes contentious/lengthy (and, hence, also sometimes
expensive) litigation.
[ see cautionary on related posting ]
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
The question of "allegedly" was put there so
that no one (ie, the prof) could come back and
countersue.
This is worse than ridiculous; it is an example disordered thinking.
If you believe you are in a position to allege and to prove that you
have been slandered (whether or not "per se") and have good reason to
believe you ought sue, then sue. Or, if you prefer, don't. However,
before you do, you might want to educate yourself more than you so far
have about the potential risks/rewards.
It sounds like the plaintiff has a choice:
either go with his best recollection
and let minor details take care of themselves
(and possibly risk a specious countersuit), or
go with "allegedly" and give the defense a big
legal bone to gnaw on.
Recovering damage provably resulting from "slander" or some nomimal
(and, in such cases, usually less than trivial) sum (e.g., $1) by
reason of "slander" that is "per se" but which has not otherwise
resulted in provable damage in fact depends, above all, on proof of
what the defend (actually) said, not of what the defendant "allegedly"
said.
All the "bone" you would be "throwing" to defendants would do,
therefore, is provide them with more of a reason than your
simultaneously made related posting suggests already exists (_much_
more than just a "bone") to move to dismiss your would-be lawsuit.
I define "specious" as being a countersuit based
on a falsehood, ie, that someone would sue the
plaintiff for stating falsely that she made a statement
when she actually did make the statement . . . .
If you sue a university and a university instructor (or either of
them) it will (in the first instance) up to defendants (and _only_ to
the defendants albeit presumably in consultation with their probably
well experienced lawyers) to decide whether to countersue _regardless_
whether, evenutaully, that lawsuit might be dismissed in whole or in
part.
If they (or either of them) countersue, it will be open to the
defendant to try to defend and, maybe eventually (although probably
after no little effort and dollar cost), s/he will prevail (in whole
or in part).
Possibly, too, you have a well-founded basis to sue.
It is just that you have not yet said what it is.
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
This is worse than ridiculous; it is an example disordered thinking.
And you are not being specific, just negative and snobbish without
foundation.
(However, I will defend to the death your right to do so... ;-)
If you believe you are in a position to allege and to prove that you
have been slandered (whether or not "per se") and have good reason to
believe you ought sue, then sue. Or, if you prefer, don't. However,
before you do, you might want to educate yourself more than you so far
have about the potential risks/rewards.
Well, I can get up to $25K through limited jurisdiction lawsuit.
If I stick to suing the University, then I believe the University will
not initiate a countersuit against me (I am still a student there,
and if nothing else, I think it would attract negative attention
to the University and to the Ed School, not exactly a shining temple
of learning, if you get my drift, and I hope you do...).
It sounds like the plaintiff has a choice:
either go with his best recollection
and let minor details take care of themselves
(and possibly risk a specious countersuit), or
go with "allegedly" and give the defense a big
legal bone to gnaw on.
Recovering damage provably resulting from "slander" or some nomimal
(and, in such cases, usually less than trivial) sum (e.g., $1) by
reason of "slander" that is "per se" but which has not otherwise
resulted in provable damage in fact depends, above all, on proof of
what the defend (actually) said, not of what the defendant "allegedly"
said.
Fine, I can drop "allegedly." Irregardless, what the prof said is
accurately
depicted according to the plaintiff's ears and memory, and a selective
after the fact checking with some student peers.
All the "bone" you would be "throwing" to defendants would do,
therefore, is provide them with more of a reason than your
simultaneously made related posting suggests already exists (_much_
more than just a "bone") to move to dismiss your would-be lawsuit.
Fine and dandy, "allegedly" is dropped.
This puts the defendant(s) in the mode of being required to refute
what *actually* transpired in a more unambiguous manner.
That is dangerous to the defendants, since they will have to perjure
themselves to do so (or else resort to the Clintonian do-not-recall defense,
which in itself will at a minimum sound bad in public and private,
and at a maximum, not be sufficient to refute plaintiff assertions and
testimony,
along with (hopefully) that of sympathetic witnesses. Refuting
would give more student witnesses motivation to testify, since
refutation would be untruthful and abhorrent to honest student witnesses.
Let them do it.
I define "specious" as being a countersuit based
on a falsehood, ie, that someone would sue the
plaintiff for stating falsely that she made a statement
when she actually did make the statement . . . .
If you sue a university and a university instructor (or either of
them) it will (in the first instance) up to defendants (and _only_ to
the defendants albeit presumably in consultation with their probably
well experienced lawyers) to decide whether to countersue _regardless_
whether, evenutaully, that lawsuit might be dismissed in whole or in
part.
If they (or either of them) countersue, it will be open to the
defendant to try to defend and, maybe eventually (although probably
after no little effort and dollar cost), s/he will prevail (in whole
or in part).
See above regarding my contention that it would be unlikely for
a university to countersue against a current or former student
seeking justice, especially based on factually accurate events.
Possibly, too, you have a well-founded basis to sue.
It is just that you have not yet said what it is.
See other posts... what is still unclear?
Thanks for your comments and questions...
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