When a Journalist Gets Sued by Someone Like Donald Trump

Keep in mind that the legal discovery the plaintiff (Trump) could use to get information from the defendant (New York Times) also would be turned around and used against him. Which means that there are many more threats of lawsuits than actual lawsuits—most of the time the person threatening to sue really does not want to have to answer all the questions—the written interrogatories and oral depositions— that are part of legal discovery. Even if Trump—for maximum publicity—sues the Times before November 8, it’s unlikely he’d let the suit go far enough that he’d have to answer too many questions.

That said, here’s what it’s like for a journalist to get sued.
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For journalists, a lawsuit is a problem you can’t make go away. Almost all problems faced by journalists can be dealt with fairly quickly—not necessarily painlessly but they can be dealt with. A lawsuit can go on as long as the plaintiff wants it to go on.

Once a lawsuit is filed, the legal process of 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.When you’re 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.

If after months of legal discovery, there is no settlement, the case goes to trial. Of the dozens of legal threats against the Washingtonian when I edited it, only six suits actually were filed, and only one went to trial. We  won that case—the DC jury awarded the plaintiffs nothing.
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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 almost all 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 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.

As they once said in Chicago politics, “Never write it if you can say it, and never say it if you can just nod your head.”

The modern version: Think twice before you put something in an e-mail that that would make a lawyer for a plaintiff like Donald Trump smile.

More than once I told an editor or writer, “Don’t put something like that in an e-mail—come and talk to me about it,” and they said, “No problem, I’ll delete it.”

Lawyers love the fact that e-mails live forever—even the ones you delete—and can be used against you in a court of law.