By Jack Limpert
1. A lawsuit is a problem you can’t make go away. Almost all problems faced by editors can be dealt with fairly quickly—not necessarily painlessly but they can be dealt with–but a lawsuit can go on about as long as the plaintiff wants it to go on. We’re talking a couple of years.
2. Once a lawsuit is filed, a legal process called discovery begins. They can ask you for answers to interrogatories (written questions), they can ask for documents, they can ask that depositions (oral questioning under oath) be taken of you, the writer, or anyone who might know something.
Ever been deposed? You get hours of advice from your lawyers. Here’s a sample of what your lawyer is likely to tell you: Listen to the question and make sure you understand it before answering—if not, ask them to repeat the question. Answer narrowly and only answer the question asked—the deposition is not your chance to be storyteller and tell your version of what happened. Before answering any questions, always pause for a moment—this gives you a chance to think about your answer to make sure you aren’t saying anything wrong/stupid/problematic, and it gives your lawyer a chance to object to any question before you start to answer. If your lawyer raises an objection, stop and think before answering the question—you’ll probably still have to answer it but your lawyer might be trying to send you a signal. No head shakes or mumbling and speak slowly.
In summary: Don’t say any more than absolutely necessary, don’t try to be clever or funny, when in doubt confer with your lawyer. You can spend a couple of days under oath trying to say nothing. You’re also trying very hard to avoid the landmines strewn about by opposing counsel.
3. When you’re going to sleep at night thinking about how you’d like to dispose (murder, a tragic accident, etc.) of the people suing you, it’s just another payday for the lawyers. More than once I saw our lawyers greet their lawyers like old fraternity brothers—how you doing, things going well? No, things are not going well, this is one of the worst days of an editor’s life.
4. The bill from your lawyers is sent every month to the accounting department. It then goes to the publisher, who then hands it to you with a pained expression. Gee, you think, it was a month where nothing much happened in the lawsuit. $16,500 for phone calls, letters, research? The lawyer has three associates working on the case, each at $250 an hour?
5. After a year or two of this, the plaintiff decides enough pain has been inflicted and there’s a settlement. Experience suggests that a small financial settlement and a clarification can cost at least several hundred thousand dollars in legal bills. Okay, your lawyer finally says, we’ve settled it and here’s the confidentiality agreement.
We had one case where the settlement was $1,000 paid to a charity but we were forbidden to ever say anything other than “an unspecified amount was donated to X charity.” Whatever the correction or clarification said, we were not allowed to say it was not an apology. We could only say “it speaks for itself.” Most clarifications say something like, “We did not intend to suggest Mr. X was a psychopathic crook” when all we did in the story was describe how he ran his business.
In summary, the settlement agreement we signed usually said something like this: “It is further agreed by all the parties hereto on behalf of themselves and their agents, attorneys, and others acting in concert with them, that this Settlement Agreement and Mutual Release document will be held confidential by them and its terms not disclosed and the document not disseminated other than there was an agreement to publish the Correction and Clarification and the specifics set forth therein…” and on and on.
Other journalists then write and talk about the settlement, suggesting that it appears you had to apologize for your bad behavior, that it probably cost you a lot of money, that it showed how dumb you are. And you can only silently curse the legal gods.
A note about e-mails: In the pre-digital age, our lawyers always told us that once a story had been published, we should destroy all notes and proofs that showed how the story was edited. The idea was that, if sued, you didn’t want to have to produce anything that raised questions about the story. Now most communication between editors, and with writers, is done by e-mail. After a lawsuit is filed, one of the first things their lawyer will do is ask for all e-mails to and from you, your editors, the writer, and others. Did you or one of your editors e-mail the writer to ask that something be double-checked because it didn’t sound right? The plaintiff’s lawyer will smile at that.