A question we’re often asked is, “Can I sue my ex (or their attorney) for lying about me in court?” It’s not always a simple question to answer.
This question often comes up in the context of a child custody case or more generally during divorce proceedings. Maybe one parent has testified in court or told a Parental Responsibility Evaluator (PRE) that the other parent has a substance use disorder. Maybe they’ve told the court the other parent has sexually or physically abused the children. It might be that one soon-to-be former spouse falsely accused the other of infidelity and of having a sexually transmitted infection. Sometimes the question is about a party’s attorney if the attorney is the one doing most of the talking and signing the documents filed. All of these situations are certainly very serious and very harmful. But can you sue for libel or slander over what your ex or their attorney says about you in court?
Many states, including Arizona and Colorado, recognize what’s known as “an absolute privilege for statements made during judicial, legislative or executive proceeding.” Fillmore v. Maricopa Water, 120 P.3d 697 (Ariz. App. 2005); see also Glasson v. Bowen, 84 Colo. 57 (Colo. 1928) (“Matter published in due course of judicial proceedings and pertinent thereto is within the protection of an absolute privilege.”). It’s sometimes known as the “litigation privilege.”
That includes statements made by the parties in what they testify to in court. It may also include “[s]tatements made by an attorney during or in preparation for pending legal proceedings…so long as the remarks have some relation to the proceeding.” Begley v. Ireson, 2020 COA 157, 9-10 (Colo. App. 2020).
“This absolute privilege exists to encourage and protect free access to the courts for litigants and their attorneys.” Id. (quotations omitted).
No one is suggesting that lying in court is a good thing. In fact, there can be criminal penalties for perjury, even if it seems like there aren’t consequences for everyone who lies in court. What the absolute privilege suggests is that the interest in allowing parties and witnesses and attorneys and judges to testify and speak freely in court without fear of a lawsuit is a higher priority. We’d rather let some liars get away than see innocent witnesses dragged into years of defamation litigation because what the witness had to say was unpopular.
An absolute privilege is an absolute defense, a defense that is not affected by “the speaker’s motive, purpose or reasonableness in uttering a false statement.” Goldman v. Sahl, 248 Ariz. 512, 520 (Ariz. App. 2020). So whether someone is mistaken in what they tell the court or is intentionally lying, the privilege applies and protects them from liability.
But what about statements made to police? Is that considered part of a “judicial proceeding?”
The answer will depend on the state.
In Arizona, it’s been held that a report to law enforcement is absolutely privileged since “citizen complaints to law enforcement authorities” should be viewed as “related to judicial proceedings” since, for example “a complaint to police is the first step in a judicial proceeding.” Ledvina v. Cerasani, 213 Ariz. 569, 572--74 (Ariz. App. 2006).
In Colorado, however, “the general rule in the law of defamation is that statements made to law enforcement officers are entitled to only a qualified privilege and not one that is absolute.” Burke v. Greene, 963 P.2d 1119, 1122 (Colo. App. 1998). Unlike an absolute privilege, a qualified privilege is one that can be lost if there is proof the person sued made their statements “with malice, i.e., with knowledge that they were false or with reckless disregard for whether they were true or false.” Id.
Qualified privileges can still be difficult to overcome. It can be surprisingly difficult to find the evidence of malice. Knowing someone was lying isn’t the same thing as being able to prove it.
Proving someone lied generally means proving two things: proving that what they said was false and showing that they knew what they said wasn’t true when they said it.
Knowing whether an absolute or a qualified privilege might apply in a particular case or to particular statements made in a particular context is an important part of assessing the potential risks of bringing any defamation case.