To bring a successful defamation claim in Virginia state courts, it is necessary to allege facts sufficient to demonstrate to the judge that the statement claimed to be defamatory is capable of conveying a defamatory meaning to a reasonable audience. Before a defamation claim can be presented to a jury, the judge needs to make a preliminary determination that the statement at issue conveys factual information (rather than mere opinions) and that such factual information could be reasonably interpreted as having a defamatory meaning. What is a trial court supposed to do if the complaint contains only a short, out-of-context excerpt of the defendant’s statement?
In federal court, some judges have denied motions to dismiss such claims on the theory that the merits of the claim—while not apparent from the face of the complaint—are plausible and might be proven at trial. In state court, however, guidance from the Virginia Supreme Court suggests that libel and slander cases should be dismissed on demurrer if defamatory meaning is not readily apparent. In some situations, plaintiffs’ lawyers will craft the complaint in such a way as to make an out-of-context statement appear defamatory, when the surrounding statements omitted from the allegations would demonstrate that the statement as a whole could only be reasonably interpreted as hyperbole or opinion. When defense counsel is faced with such a situation, the smart move is to move for a bill of particulars.
Trial courts can order a bill of particulars “to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.” Va. Sup. Ct. Rule 3:7(a). When a plaintiff claims defamation, the preferred practice is to include the entire statement (verbatim) as well as all relevant surrounding details of the statement sufficient to demonstrate context. When such details are not included, “they are proper matters to be stated in a bill of particulars.” Fed. Land Bank of Baltimore v. Birchfield, 173 Va. 200, 217 (1939). The Virginia Supreme Court reiterated this principle as recently as 2006, when it expressly recognized that “the particulars of [an] allegedly defamatory statement may be supplied in a bill of particulars.” See Government Micro Res., Inc. v. Jackson, 271 Va. 29, 38 (2006).