May 3, 2019, 2:21 pm CDT
An article in an ABA publication for judges didn’t defame a nonprofit group that certifies forensic document examiners, a federal appeals court has ruled.
In a May 1 opinion, the 7th U.S. Circuit Court of Appeals at Chicago affirmed dismissal of a defamation suit filed against the Judges’ Journal, a publication of the ABA Judicial Division.
The appeals court ruled that statements in the article weren’t defamatory because they contained only nonactionable opinion. The 7th Circuit panel opinion was written by Judge Michael Scudder Jr., who was appointed by President Donald Trump to a seat vacated by Judge Richard Posner.
The Board of Forensic Document Examiners had sued over the article’s advice on how to distinguish between “true professionals” and “lesser qualified” examiners. The article, “Forensic Handwriting Comparison Examination in the Courtroom,” ran in the summer 2015 issue of the Judges’ Journal.
The article didn’t mention the Board of Forensic Document Examiners by name, but the board nonetheless asserted that it was defamed by four statements in the article:
• One statement concerned minimum training needed by “an appropriately trained document examiner.”
• Two statements praised a different, larger organization, the American Board of Forensic Document Examiners. One statement said the American Board was “the only certification board recognized by the broader forensic science community, law enforcement and courts for maintaining principles and training requirements concurrent with the published training standards. Be wary of other certifying bodies.” Another cautioned judges “to look out for” examiners certified by other boards.
• A fourth statement cautioned against any member of a different organization.
The 7th Circuit said the article and its context made clear that it was expressing a statement of opinion. “The article was what it purported to be: one practitioner’s commentary on how judges should attend to the admission of expert opinion in the area of handwriting analysis,” Scudder wrote for the court.
“This interpretation is particularly reasonable as the Judges’ Journal warned readers that ‘articles represent the opinions of the authors alone’ and ‘provide opposing views’ for readers to consider.”
The Board of Forensic Document Examiners initially had responded to the article by submitting a rebuttal, but it decided to sue after becoming frustrated with the ABA’s suggested edits, the appeals court said. The court suggested that the board should not have given up on that avenue.
“Though the board may disagree with [the author’s] assessment of who is properly qualified and what credentials district judges should look for when considering proffered experts, the appropriate avenue for expressing a contrary point of view was through a rebuttal article, not a defamation lawsuit,” Scudder wrote for the court.
Hat tip to Bloomberg Law.