The Legal Question (s)

Behind the Scenes posting on what you can and can't write and why

The ongoing story of getting Blackbird published, legal issues within a memoir and ways to avoid getting sued (to include resources)

Welcome to Flight School:

It was time to talk to the lawyers at Simon & Schuster about the veracity of memory and the very real possibility that I, and they, might get sued in the future. Never a fun ordeal, no matter the situation, because…well…lawyers rarely have good news, this meeting with the legal team was harrowing. If things didn’t go well, I’d be forced to pay back my advance and my publishing career would be over before it started.

“Don’t be so dramatic,” Kim said on the phone on the day we were to prep for the legal meeting. “We haven’t come this far to fall on our faces now!”

Kim was in New York, presumably working in that tiny cubby of a space outside her bosses windowed and spacious office. And I was in Portland in my own office at the back of our old house. Spencer was two and a half, talking and walking and becoming more and more himself every day, and I was working feverishly on the sequel (under Kim’s advice) on the off chance the publisher would want a second book.

Though I was chewing my nails down to the quick with worry, Kim was right. Contracts had been signed, money deposited into my bank account, and we had the full support of nearly every department in the publishing house. A tentative publication date had been set for the spring of 1999 though it was possible that was going to be pushed to the fall.

Now, we had to cross through what I considered to be a wall of fire. On the phone or in person was the question I kept asking myself. Phone would be easier on my family, and more affordable, and even Kim agreed that a telephone meeting would be fine... speakerphone, actually, because there would a team in on the conversation.

“A team?” I asked. “What does that mean?”

“Me, Nancy, a couple other editors, and the lawyers.”

“Lawyers? As in more than one?” I grabbed a pencil from a coffee cup I kept on the desk for pens and highlighter and pencils, and tapped it rhythmically on the edge of my desk.

“This is actually a good thing,” Kim said. “We’re all behind you here. Try not to get worked up. Keep at your sequel. It’s all good.”

When someone reassures you too much, you worry more. At least I worried more. Steve and I talked it through and agreed I should make the trip. “Why take any risks?” he said. Remember, this was way before the days of Zoom. There were no teleconferences. Heck, we weren’t even texting yet (at least I wasn’t). Steve was right, I needed to feel some sense of connection to these lawyers, needed to look into their eyes, needed to see if they were indeed on my side.

Most writers I know live somewhere between dread and denial when it comes to legal matters and ethics, I’m not exception. ~ Robin Hemley, A Field Guide for Immersion Writing

If you are writing a memoir, the issue of being sued, or loosing people you love, or being called out as a fraud and a liar, is most certainly on your mind. How can it not be? The very basis of your writing is that you are telling the truth but what if you can’t prove what you have written? What if you get it wrong? What if someone else can prove you got it wrong? And on and on the questions go.

Below, I am pulling from several reference books I keep around for this very conversation but one my favorites (for the examples and how comprehensive he is) is Hemley’s Field Guide quoted above. If you are a memoir writer, I highly, highly recommend this little gem though you don’t need it, as you’ll soon see.

In this country, anyone can sue you for any reason at any time. That’s a fact. If you are reading this and live in another country, of course, your laws will vary. For example, in China, you can be sued by the living relatives of people who have died. Who knew?

So, if you are freaked out about the legal side of things, or even slightly worried to the point that you are stalled in your writing, don’t waste another second. Talk to someone about this issue. Not a fellow writer, or a pal. This is not an area you want “opinions” or someone else’s version of how things went for them. And, to be honest, I don’t even recommend reading a book or two on the topic calm your nerves. Not even the above book.

I suggest you get on the horn and call a lawyer with expertise in this particular area. Spend the money and buy yourself expert advice. Year to year things change, laws shift, as does public opinion and reaction to things being written. The law works on facts. Get the facts.

If you are writing just fine and hardly think about this issue at all, great. Write the best book you can, cue the reader that you might be wrong (here’s an earlier post on this point), change names and identities where you feel you must, and don’t write a book that makes everyone else the villian and you the victim. Write a balanced, fair, emotionally honest story and deal with it later.

But…once you sell your book, start paying closer attention to this issue. For instance, Hemley makes the the point that when you sign a contract with a publishing house, pay extra close attention to something called the “indemnity clause.” Make sure your agent, or a lawyer, takes a close look at it for you, too. Hemley goes on to say that ost publishing houses will have insurance to protect themselves in the case of a lawsuit but if they are sued, you might have to pay a portion of the costs to include a settlement. Work this out before you sign your paperwork. Be clear about your level of responsibility and the publishers.

You can also add an extra layer of protection by acquiring liability insurance. Like you have insurance on your car, and your house, and your life, if you are writing a memoir and you worry that you might be sued, why not be safe?

In looking through Hemley’s sweet little teaching book, I also see he recommends you consider joining a writer’s collective:

The Authors Guild.

National Federation of Press Women.

The National Writers Union.

All three (this is for the US) offer some form of insurance policies and support. I believe Substack might as well but don’t hold me to that.

If you are in a different country and you come up with some other suggestions based on your research, I hope you’ll consider sharing for your fellow memoir writer and Flight School reader.

So there I was in NYC, once more, and in an office of Pocketbooks, legs crossed at the knee and jittery on too little sleep and too much coffee. The lawyer turned out to be a woman (let’s call her Felice, which I believe was her name but I cannot remember), and let’s also suggest she wore a wrap style jersey dress with closed toed pumps. If she did or did not, I cannot say, but I do recall she was fashionable but also comfortable. Shoulder length kinked brown hair. A sweet face. A nice smile. I also remember that all my weeks of worry evaporated the moment we shook hands.

“First of all,” she said, legal pad on her lap. “I loved your book. Truly. I couldn’t put it down.”

That was a good start, I thought.

But then came the questions, and out came pen to tally them on that pad: Do you have proof of this, this, this, and this? What about documentation? Were there any witnesses? Video tape? Audio recordings?

For the next couple of hours we went chapter by chapter through the entirety of Blackbird. I could prove my parents had died, and how, and had a pile of research documents to that effect. I had copied them and brought them to that the meeting, too. These documents also corroborated the locations I wrote about, to include the various homes we had lived in over the years.

But when it came to what I wrote about the church my father and step-mother attended, and my step mother’s acts of neglect to include not calling for an ambulance on the day my father had his heart attack, a move that in effect weakened him and led to his death, and how she would later (after his death) deposit me—alone—in a community building where I lived unsupervised…well…these were “issues of concern.” I was making serious claims. Manslaughter. Neglect and abuse of a minor.

If I was sued, and there was a chance I could be which meant Simon & Schuster could be too, I could only lean into memory and that wasn’t good enough. There was also the fact that is particular church was known for being litigious, meaning they had deep pockets and lawyers on standby to file suits for the sake of filing suits.

“We don’t want any of that for you, or for us,” Felice said. “You’ve been through quite enough. So here’s what we suggest…”

An hour of conversation led to the decision that I would change all recognizable and identifiable features of my step mother to include her name, mannerisms, speech, where we lived, the number of kids she had, the gender of those kids, and any recognizable and identifiable features of those kids too. Same with the church. It was advised I come up with a different name for the church, a different philosophy that they practiced, and a different series of events of what happened when attending their functions. Here, I balked because I couldn’t make up abuse to protect the abusers. That would make my work fiction. More debate, more discussion, and it was agreed that I would not change what happened, but I would change anything that made the church identifiable.

It didn’t mean a complete rewrite but I did face months of massaging and altering and carefully shifting things around while also working to preserve the integrity of the whole.

I remember asking if I needed any insurance to cover myself in the event of being sued, but once our meeting was done, Felice said probably not. If I made these changes pre-publication, she believed we’d be okay.

To be honest, I don’t remember a thing about my contract’s indemnity clause. I don’t remember reading it, or talking to a lawyer about it either. This doesn’t mean I didn’t, I just don’t remember. I suppose I must have talked with my agent, Rita, about all this, but looking back, I cannot recall many of the specifics. It was so many years ago.

And I know, after writing this post, that I will absolutely be asking these questions when and if I sell another memoir. I’ll be reading an indemnity clause carefully, I will be discussing all the possibilities with my agent, and I will likely get myself some liability insurance. So…if all this help you…I’m glad. You have a right to tell your story, you have an obligation to write it even—if only for your own edification and personal evolution—and you need to be smart about the world we live in. You’ve lived through your life, through the hardships and challenges, you’ve grown in wisdom. My best advice now, cover your a#$!

(Go directly to the next post on the Blackbird journey now).

Thanks for being on the journey with me. Looking forward to your comments and questions.

~ Jennifer, 🍎