So Sue Me
September 10, 2019 § 9 Comments
Anne Lamott’s maxim is some of the most-quoted writing advice in the memoirist world. Followed closely by: Write the book first, worry about hurt feelings later.
That doesn’t stop us from worrying our way through the first—or even final—draft.
If I write about my mom hitting me, can she sue me?
If I tell that secret, will anyone talk to me at the family reunion?
My sister told me I better not write anything about her…what if I change her name?
Yesterday on the Brevity Blog, Lisa Sellge wrote about sharing her finished manuscript with people in it, the hedging and self-protection writers do within that process. But even before the final draft, many writers fear a family explosion, resentment, or even legal action.
We can’t control how our loved (or unloved!) ones will react. We can only be as truthful as we can, allowing ourselves the distance to write from analysis as well as from emotion, showing why other people behaved as they did, as best we can tell from hindsight. It’s our choice to brace for anger from a parent or sibling, or practice verbal judo with a smooth, “I can see how the story would be different from your perspective. Let me know when you write about it.”
What if they threaten to sue? In the USA, you can sue anyone for any damn reason you want. Even if you signed a release, even a big scary release with ACCEPT ALL RISKS FOR INJURY AND/OR DEATH on it. In most American jurisdictions, no-one can sign away their right to sue. Releases provide evidence that a suit is baseless, because the signer accepted responsibility, but they don’t stop anyone from filing paperwork and demanding their day in court.
So why aren’t alcoholic parents and pedophilic religious leaders stampeding into court to bankrupt and destroy the fragile writers telling their own stories?
It’s expensive and time-consuming to pursue a civil case, and they aren’t easy to win without a phalanx of top-notch attorneys laying out extensive documentation of the kind most non-memoirists rarely preserve. Unless the suit is against an insurance company with the potential for a huge payout (as in medical malpractice, accident and wrongful-death cases), lawyers rarely take civil cases without an up-front retainer.
Say your poorly-behaving former spouse has five figures to spare and a sense of vengeance strong enough to waste every dime. First, they must lawyer-shop until they hear, “Sure, you’re not crazy at all and I’d love to take on a hard-to-prove case against someone with no money.” The lawyer must then find a judge who doesn’t laugh them out of court and agrees to consider your spouse’s hurt feelings.
If the suit actually makes it to court, the person you wrote about must prove three things:
- You lied
- You lied on purpose to hurt them
- Your story hurt them in terms of hard cash or public reputation
- The truth is always a defense against libel. Police reports. Affidavits from your friends. Photos or videos. Your convincing presence on the witness stand.
- If you accidentally didn’t tell the truth, that’s still not actionable. A plaintiff has to prove you lied on purpose or were very careless, not just that you were mistaken or have a different opinion. Memoir is inherently our opinion; it’s also worth adding caveats like “As I remember it…” or “what it felt like was…”
- Damages are meted out based on actual, provable harm. By portraying people’s behavior in interpersonal relations rather than their ability to do their job, you are unlikely to damage their finances or their reputation enough for a judge to believe they need redress. You can say your doctor cheated at golf; criticizing his medical ability could do him financial harm and he’s likely to have records to prove it.
Our final protection against being sued?
Most of us aren’t worth suing. We don’t have enough assets for a long-shot winner to take. In most jurisdictions, a lawsuit can’t take your homestead. Your homeowner’s insurance is unlikely to cover libel, so your angry relative won’t be suing them. Generally, if you have enough money to be worth suing, you can already afford your own excellent lawyer to tell you all this. If you don’t have that kind of cash, it’s almost never worth the time and money for the plaintiff or their attorney.
I am not a lawyer. This is emotional, rather than legal, advice. But emotional fallout from a published memoir is far more likely than legal action. Instead of fearing a suit, spend that time being as honest as you can on the page, letting other people’s actions show who they are and being clear about what you remember and what’s a best-guess. Read Tara Westover’s Educated to see how she honors competing stories while insisting on her own truth.
Threatening to sue is easy. Actually suing—winning—and collecting damages is pretty darn hard. Be fair, be kind, write the best book you can that tells your own true story. If someone threatens to sue, smile gently. Tell them, “I can see you feel really passionate about getting your story out there. I hope you write a book.”
Allison K Williams is Brevity‘s Social Media Editor. Sign up for her travel-adventure postcards at TinyLetter.