From yesterday's Illinois Appellate Court decision in Grasso v. Mottl, decided by Justice Matthew Bertani, joined by Justices Linda Davenport and John Anderson:

Plaintiff, Gary Grasso, mayor of Burr Ridge [sued, alleging] … [opposing candidate Zachary Mottl and his campaign team] published three defamatory political mailers during a political campaign that stated he had defrauded the government in the amount of $36,000 in real estate tax exemptions.

The basis for the fraud claim originated from a research report of a third-party political research firm [America Rising] retained by defendants that indicated plaintiff had improperly received an annual $6,000 homestead exemption for a Du Page County residence while simultaneously receiving a homestead exemption for a Cook County residence. Accordingly, the $36,000 figure suggested plaintiff defrauded the government for a period of six years. However, the research report only supported a two-year overlap in homestead exemptions.

On appeal, plaintiff asserts the court erred in granting summary judgment for the defendants in that genuine questions of material fact exist regarding whether defendants were aware the mailers contained false information and whether defendants subjectively doubted the truth of that information. We hold that a triable issue exists as to whether defendants recklessly disregarded the truth in publishing the mailers, reverse the grant of summary judgment in their favor, and remand for further proceedings….

The narrow question presented in this appeal is whether the evidence of record supports that plaintiff has shown with convincing clarity that a reasonable jury might find defendants published the mailers with actual malice. In the light most favorable to plaintiff, we hold that such a triable issue exists.

[Defendant political strategist Collin] Corbett testified at deposition that defendants relied on the America Rising research report for the information they featured within the mailers. He and/or COR [Corbett's corporation] vetted that information by examining governmental records that corroborated the research report's findings concerning simultaneous homestead exemptions. In turn, defendants crafted and published the mailers. Corbett testified to his direct involvement in drafting [a mailer that included allegations] … that plaintiff had committed fraud in the amount of $36,000.

The research report indicates that plaintiff had an overlapping homeowner's exemption on his properties for a two-year period. A colorable argument may be made from the report that plaintiff received a total of $12,000 in improper homestead exemptions on his Burr Ridge residence. Corbett was unable to recall how defendants converted that information into a claim of fraud in the sum of $36,000. The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017. Corbett was unable to explain the "math" defendants used to formulate the $36,000 figure ….

An inference of reckless disregard may be made where the "defendant's investigation has revealed … insufficient information to support the defamatory accusations in good faith." … [A] reasonable jury might find that Corbett's testimony provides convincing clarity that defendants published the mailers with reckless disregard for the truth.

Defendants direct our attention to the portions of Corbett's deposition they assert are dispositive of Corbett's subjective state of mind. Corbett routinely responded "I can't speak to our thinking at that time" when questioned why defendants published the duration and amount of simultaneous homestead exemptions beyond those reflected in the research report. Defendants assert defendants' subjective intent is best evidenced by Corbett's unrefuted testimony that they would not have used any information they believed to have been false. This testimony does not negate a showing of actual malice.

As the United States Supreme Court has explained, "[t]he defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith." While a determination on actual malice is not always a question reserved for the jury and may be disposed of on summary judgment, there is no indication the circuit court considered whether the mailers were published in good faith in its grant of summary judgment. As we have noted, we conclude a genuine issue of material fact exists concerning the claim of actual malice….

Justice Anderson added a separate concurrence:

I write separately … to elaborate on the problem that exists when a party seeks summary judgment based on their own subjective knowledge and intent, and that party is the only one who has that information (and I use "information" loosely)….

The issue here is not whether Corbett blew a stop sign, signed a contract, or mailed a letter on a particular date. Those are objective facts susceptible to contradiction through competing evidence. Rather, the dispositive fact asserted here concerns not an objective fact, but Corbett's credibility relative to his own state of mind—his subjective knowledge at the moment he published the allegedly defamatory statement. By its nature, such information resides exclusively within Corbett's head. Grasso cannot reasonably be expected to submit a counter-affidavit declaring what Corbett actually knew because Grasso has no personal knowledge of that fact.

To hold otherwise would create a peculiar and troubling rule. A defamation defendant could win merely by submitting an affidavit stating, "I did not know the statement was false," and absent circumstances permitting competing inferences regarding the defendant's state of mind, the plaintiff would be powerless to contest it. The more private the defendant's knowledge, the more insulated it would become from judicial scrutiny. Such a rule would transform summary judgment from a mechanism for identifying the absence of genuine factual disputes into a device for conclusively establishing them.

Credibility lies at the heart of this case. Defendants ask us to accept Corbett's statement not because it is corroborated by independent evidence but because he says it is true. Of course, uncontradicted testimony may be sufficient to establish a fact in many circumstances. But the trier of fact is not required to accept as true testimony that bears directly on a witness's own credibility, motive, or subjective state of mind simply because no opposing witness can directly contradict it.

Further, courts have long recognized that the trier of fact is not required to believe self-serving testimony simply because it is uncontradicted. Human experience teaches otherwise. Witnesses may be mistaken, evasive, self-interested, or dishonest. The assessment of credibility has traditionally belonged to the factfinder, who can observe demeanor, evaluate inconsistencies, and consider testimony in the context of all surrounding circumstances….

These principles carry particular force where, as here, the witness stands to benefit directly from acceptance of his testimony. Corbett's deposition testimony is not a neutral recitation of historical facts. It is a self-serving declaration concerning the very mental state that determines liability. Corbett effectively asks the court to conclude that he lacked knowledge of falsity because he says he lacked knowledge of falsity. Such circular reasoning leaves no meaningful role for cross-examination or credibility assessment….

In all fairness to Corbett, most testimony is self-serving, and I do not suggest that self-serving testimony can never support summary judgment. It often does. Not every disputed question of fact must reach trial.

But cross-examination exists precisely for situations such as this one. It allows an opposing party to probe the witness's sources of information, prior statements, motives, inconsistencies, and claimed beliefs. A witness who confidently professes ignorance in a quiet deposition may appear far less convincing when required to answer detailed questions under oath before a judge or jury. The law's traditional preference for live testimony reflects the recognition that truth is often revealed not merely by what a witness says but by how the witness responds when challenged. In the American legal system, courts routinely rely on the trier of fact to make a credibility determination….

[W]e cannot allow a litigant to stroll into a deposition, pull a Jon Lovitz and announce, "Yeah, I had no idea it was false. Yeah, that's right. Yeah," then demand summary judgment because no one possesses contrary evidence from inside his head. That may be the ticket for comedy. It is not the ticket for summary judgment….

Jerome A. Vinkler (Vinkler Law Offices, Ltd.) and Adam R. Bowers (Grasso Law, P.C.) represent plaintiff.