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  1. #16
    quincy is offline Senior Member
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    And, um, exactly how many books have you authored, Willyjo?

    A disclaimer does not prevent a lawsuit. The most a disclaimer will do is mitigate damages in the event of a lawsuit loss. There have been many many suits against authors who have had nice little disclaimers in the front of their books.

    As for saying someone is "potentially mentally ill" as opposed to saying someone is "mentally ill," both can result in a defamation lawsuit. The gist, or sting, of the comment can be the same.

    A memoir, by definition, is a biography or biographical sketch that is generally written by one who knows the subject well, or an autobiography that is generally anecdotal, or a report or record of important events based on the author's personal observation and knowledge. These are NOT "based on a true story" writings, which would be considered fictional accounts.

    In other words, something that claims to be 100% true would be 100% true - not 90% true or 50% true. Names would not be changed, nor would times, places or events.

    So, Willyjo, what you wrote is factually wrong. And including a disclaimer will not prevent a lawsuit, so that is legally wrong. Following your advice could get Zippy123 sued. I think you are potentially an idiot.
    Last edited by quincy; 12-18-2010 at 06:04 AM.
  2. #17
    Willlyjo Guest
    Quote Originally Posted by quincy View Post
    And, um, exactly how many books have you authored, Willyjo?

    A disclaimer does not prevent a lawsuit. The most a disclaimer will do is mitigate damages in the event of a lawsuit loss. There have been many many suits against authors who have had nice little disclaimers in the front of their books.

    As for saying someone is "potentially mentally ill" as opposed to saying someone is "mentally ill," both can result in a defamation lawsuit. The gist, or sting, of the comment can be the same.

    A memoir, by definition, is a biography or biographical sketch that is generally written by one who knows the subject well, or an autobiography that is generally anecdotal, or a report or record of important events based on the author's personal observation and knowledge. These are NOT "based on a true story" writings, which would be considered fictional accounts.

    In other words, something that claims to be 100% true would be 100% true - not 90% true or 50% true. Names would not be changed, nor would times, places or events.

    So, Willyjo, what you wrote is factually wrong. And including a disclaimer will not prevent a lawsuit, so that is legally wrong. Following your advice could get Zippy123 sued. I think you are potentially an idiot.
    So if I said you were potentially Mentally Ill, would you sue me? Let's talk about facts here! Everyone in this Forum IS potentially Mentally Ill! Simply put, this means that anyone can become Mentally Ill--it can happen to ANYONE!! Mental Illness knows no demographical boundaries! A lawsuit filed against someone telling another they are "potentially mentally ill" is frivilous and would not even withstand a Demurrer!

    You will never read or find an Autobiography that is 100% true! In fact, there are indeed many that don't or won't give true names if they are writing a couple paragraphs about someone who may try to sue them.

    It is true, a disclaimer does not prevent a lawsuit (nothing will if the person is hell bent on suing)! But good luck on anyone being successful in suing an author who HAS a disclaimer and ficticious names for real Characters within the Autobiography or Memoir!

    As you know, Defamation Lawsuits are very very expensive and time consuming, therefore, don't expect it to happen very often! Also, I'm not advising Zippy to follow my advice--I'm just stating that an Author would pretty much be safe by using a disclaimer and ficticious names for the characters!

    I'm currently writing a Memoir (280 edited pages complete thus far) and I've put a disclaimer in my Introduction as well as changed names and disguised geographical areas to make it very hard for a character to sue me successfully! Does these changes make my story less true? Absolutely Not (in the eyes of literary professionals)!

    Such changes are incidental and do not detract from the story's authenticity.

    And finally, if one desires to write an Autobiography or Memoir, for it to be real, one has to pretty much tell it like it is because this is not a fairy tale world as some would believe.

    If an Author would take the time to carefully disguise a character to protect that character from scrutiny and scorn, then that person who realizes he is reading about himself, more often than not, would not even think of suing because, as the Op said, they would be opening themself up to such scrutiny and scorn!

    Also, they would probably not have the funds to file such litigation papers and if they did, it would be very hard for a lawyer to take such case! So the chances of a lawsuit would be very miniscule! Anyone who doesn't comprehend the difference between "potentially mentally ill" and "YOU ARE MENTALLY ILL" IS IGNORANT!! And I don't mean "POTENTIALLY"!
  3. #18
    Proserpina is offline Senior Member
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    OP, please consider that quincy is one of the most well-respected and knowledgeable contributors to the forum.
  4. #19
    quincy is offline Senior Member
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    "Memoirs of a Fired Dental Clinic Greeter," huh, Willyjo? Sounds like a bestseller.

    I suspect your literary background and education have been confined to the current writing of your memoirs, and I strongly suspect you do not have any legal background or legal education. For these reasons, it would have been wise for you to have done at least a minimum amount of legal research prior to dispensing legal advice on a question involving the law of defamation as it applies to writers.

    For this thread, you first should have educated yourself on disclaimers and what they legally can and can't do. While disclaimers are good to have in the event of a lawsuit, nothing replaces a thorough review and careful editing of a manuscript prior to publication, with the editing and review done by someone who knows what they are doing. A disclaimer cannot prevent a lawsuit. A disclaimer can mitigate the damages awarded in a lawsuit loss.

    Then for this thread, it would have helped you to review a few of the many, many lawsuits filed against authors and publishers over the defamatory content of the works they have published. If you do not have free access to court cases, a simple Google search could have revealed a sampling of some high-profile defamation cases brought over published memoirs. These are not rare suits, by the way. Whenever an individual or an entity is named in a book, the need for careful editing increases as the risk of a suit increases. You can google "The Naked Truth" suit (about Danielle Staub) and the "Running with Scissors" suit (author Augusten Burroughs) for two "memoir" lawsuits, and I will provide additional cases should you get through these. It is important to note that most defamation suits will not be found with a simple google search, nor will they be especially newsworthy, nor will they be featured on programs like TMZ. The majority of lawsuits (of all kinds) will settle before making it to trial.

    A memoir, by its very nature, purports to be true. Saying that someone you know is potentially mentally ill can imply more knowledge about the mental condition of this person than may exist and can, therefore, be defamatory. Exactly how a statement is worded is important. Context is also important. You making a blanket statement that all of the anonymous posters on this forum are potentially mentally ill, for instance, does not have the same impact, or legal risk, than does that same statement made about a specific person whom you apparently know well enough to include in your memoirs. Your blanket statement is rhetorical hyperbole and is a bit stupid but it would not be actionable. The second statement could be considered hyperbole by a court, but that would depend on the context and the facts - and, of course, if a court is considering the matter, it means you have been sued.

    I agree with you that defamation actions are expensive and should not be undertaken lightly. There should always be an attorney's review of the facts to determine whether a suit has merit and, if so, whether a suit is worth the time and high expense of pursuing. This is assuming the filing of a lawsuit is within your control, however. If you are being sued, you will be served with a complaint and you will be forced into a suit. As expensive as defamation suits are to pursue, they are a lot more expensive to defend against and lose. Ask Simon & Schuster, Doubleday, Random House, St. M artin's Press, the Penguin Group. . . .and the authors who have penned memoirs that have resulted in lawsuits.

    One final note and for your future reference (as one professional writer to, um, another): Emphasizing all statements with exclamation points has the opposite effect of what a writer may intend. Not only do exclamation points look a bit silly when used too often, they are often an indicator that the statement preceding the exclamation point cannot stand on its own. Eliminating these from your writing, and substituting facts to support your statements, can work to increase your credibility.

    Good luck with your book, Willyjo. My advice to you is that you do not rely solely on a disclaimer to protect yourself from a lawsuit. A review by an attorney of your manuscript prior to publication, and having liability insurance especially if you are self-publishing, would be wise.

    (thanks, Pro)
    Last edited by quincy; 12-19-2010 at 02:44 PM.
  5. #20
    Willlyjo Guest
    Quote Originally Posted by quincy View Post
    "Memoirs of a Fired Dental Clinic Greeter," huh, Willyjo? Sounds like a bestseller.

    I suspect your literary education and background is confined to the current writing of your memoirs, and I suspect you have no legal education or background of any kind (unless you gained some knowledge by suing or being sued). For these reasons, it would have been wise for you to have done at least a minimum of legal research prior to dispensing legal advice, when the legal question was one involving laws on writing and defamation.

    For this thread, you first should have educated yourself on disclaimers and what they legally can and can't do. While disclaimers are good to have in the event of a lawsuit, nothing replaces a thorough review and careful editing of a manuscript prior to publication by someone who knows what they are doing. A disclaimer cannot prevent a lawsuit. A disclaimer can mitigate the damages awarded in a lawsuit loss.

    Then for this thread, it would have helped you to review a few of the many, many lawsuits filed against authors and publishers over the defamatory content of the works they have published. If you do not have free access to court cases, a simple Google search could have revealed a sampling of some high-profile defamation cases over memoirs. These are not rare suits. Whenever an individual or an entity is named in a book, the need for careful editing increases as the risk of a suit increases. You can google "The Naked Truth" suit (author Danielle Staub) and the "Running with Scissors" suit (author Augusten Burroughs) for two "memoir" lawsuits, and I will provide additional cases should you get through these. It is important to note that most defamation suits will not be found with a simple google search, nor will they be especially newsworthy, nor will they be featured on programs like TMZ.

    A memoir, by its very nature, purports to be true. Saying that someone you know is potentially mentally ill can imply more knowledge about the mental condition of this person than may exist and can, therefore, be defamatory. Exactly how a statement is worded is important. Context is also important. You making a blanket statement that all of the anonymous posters on this forum are potentially mentally ill, for instance, does not have the same impact, or legal risk, than does that same statement made about a specific person whom you apparently know well enough to include in your memoirs.

    I agree with you that defamation actions are expensive and should not be undertaken lightly. There should always be an attorney's review of the facts to determine whether a suit has merit and, if so, whether a suit is worth the time and high expense of pursuing. But, as expensive as defamation suits are to pursue, they are a lot more expensive to defend against and lose. Ask Simon & Schuster, Doubleday, Random House, St. M artin's Press, the Penguin Group. . . .and the authors who have penned memoirs that have resulted in lawsuits.

    One final note and for your future reference (as one professional writer to, um, another): Emphasizing all statements with exclamation points has the opposite effect of what a writer may intend. Not only do exclamation points look a bit silly when used too often, they are an indicator that the statement preceding the exclamation point cannot stand on its own. Eliminating these from your writing, and substituting facts to support your statements, can work to increase your credibility.

    Good luck with your book, Willyjo. I advise that you do not rely solely on a disclaimer to protect yourself from suit and taking out liability insurance is wise, especially for a self-publisher.

    (thanks, Pro)
    I didn't need to research defamation litigation against any Author to conclude that your post is highly inaccurate as far as your comment that one could be sued by telling another they are "potentially mentally ill"! Your post was also inaccurate when you tried to make anyone believe that "based on a true story" is not a true story, but a work of fiction!

    As far as exclamation points, they are what they are!!! Their purpose is to emphasize a statement! While in a forum such as this, there is no need not to use exclamation points! And...the statements I made stand on their own whether they end with an exclamation point or not. It has the same effect as SHOUTING.

    FYI, I don't believe I have even one exclamation point in my Memoir. Also, I'm not here to win any award for writing a biography or a memoir--that is why you could probably find a spelling error or too many exclamation points in some of my posts.

    Also, there is no merit for a lawsuit if anyone is told they are "potentially mentally ill" whether verbally or by the written word! Implication alone does not rise to a standard which merits a successful suit against someone in this regard!

    Your post does show a good command of words, I'll give you that. However, that is exactly why someone with less reading comprehension would easily believe everything you stated. I even believe that you believe what you say is true.

    I simply pointed out that which was inaccurate. I agree anyone can be sued for anything, but if they try to sue someone like me who has included a disclaimer and changed names and disguised geographical areas to protect an individual's privacy, they aren't very bright and they better have a lot of cash because that is what it would take to entice a lawyer to take a case he would lose.

    In closing, Quincy, why would I pay a lawyer's outrageous fee to review the facts or the merits of my being sued? I could be sued anyway even though a lawyer says my manuscript is reasonably "safe". If I follow your advice here, I might as well throw away a couple hundred bucks to be told I'm safe eh? And...liability insurance in case I get sued huh? Not the norm.
  6. #21
    quincy is offline Senior Member
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    Good luck with your life, Willyjo.
  7. #22
    Willlyjo Guest

    Update

    Quote Originally Posted by quincy View Post
    Good luck with your life, Willyjo.
    Thank you quincy (if you mean that with sincerity). By the way, its Willlyjo not Willyjo.

    I briefly checked out "The Naked Truth" Author Danielle Staub. Her litigation surrounded an interview she did in which she said her hubby raped her and hung her dog.

    Whether she included these statements in the book, it does not say. It did say that her attorney included points in the litigation papers requesting that the book itself not be used in reference to such statements made in the interview.

    Also, Ms. Staub is pretty liable for making such statements in a national forum that may very well be unproven. That's all water under the bridge because that case settled.

    Of course as the Op in this thread mentioned, truth is a defense in a defamation action. And the fact that the aforementioned lawsuit is based on an interview and not what was in the contents of the book does nothing to support your 'critique' of my post.

    Also, quincy, I do know enough about Defamation to see that Ms. Staub probably would have lost if it would have gone to trial. However, a memoir that is heavily documented as far as the facts (some of which could be highly controversial), contains ficticious names for real characters, has a disclaimer and disguises certain geographical boundaries, would pretty much disuade anyone from filing a Defamation suit against its author.
  8. #23
    quincy is offline Senior Member
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    "The Naked Truth" defamation suit against Simon & Schuster and Steven Prigge (who authored the Danielle Staub biography) was filed by Staub's ex-husband Kevin Maher in Riverside County Superior Court, California, earlier this month. To my knowledge, the complaint has not been answered yet. The suit has certainly not settled.

    You read an October or November story about the case, perhaps? Maher did reach a settlement with Staub in October (for an undisclosed, but speculated to be substantial, sum). He is now seeking $10 million from the author and publisher, for special, general and punitive damages. The damages awarded would be to compensate Maher for the reputational injury, shame, mortification, mental anguish, humiliation, nervous pain and suffering, and economic losses he suffered as a result of the defamatory statements published about him.

    As for disguising real people to avoid a lawsuit: Even characters in fictional novels have been recognized and identified as having been patterned after real individuals, and some of the authors of these fictional novels have been sued over the characterizations as a result. Because an author will only have a limited number of real people in their lives to include in a memoir, trying to disguise these real people enough to make them unrecognizable is a difficult task to say the least. And, if disguised too much, the book becomes one of fiction not fact.

    As for whether an author should seek the advice of an attorney prior to the publication of their book - well, that is a choice that the author has to make. But the reality is that it costs far far less to prevent a lawsuit than to defend against one.

    I recommend any author have his/her manuscript reviewed by an attorney well-versed in publishing law prior to publishing, especially if it is a memoir that deals with real people. A publishing house will generally have an author sign a contract that includes an indemnity clause, so any liability that arises from the publication will fall on the author.

    As a note, WillLyjo: You expressed a concern, in an early post on this forum, over how senior members on this forum treat posters. I have to say that the posts you have directed at me in this thread are about as contentious as any posts I have seen. I apologize for responding in kind.
    Last edited by quincy; 12-19-2010 at 02:54 PM.
  9. #24
    Willlyjo Guest
    Quote Originally Posted by quincy View Post
    "The Naked Truth" defamation suit against Simon & Schuster and Steven Prigge (who authored the Danielle Staub biography) was filed by Staub's ex-husband Kevin Maher in Riverside County Superior Court, California, earlier this month. To my knowledge, the complaint has not been answered yet. The suit has certainly not settled.

    You read an October or November story about the case, perhaps? Maher did reach a settlement with Staub in October (for an undisclosed, but speculated to be substantial, sum). He is now seeking $10 million from the author and publisher, for special, general and punitive damages. The damages awarded would be to compensate Maher for the reputational injury, shame, mortification, mental anguish, humiliation, nervous pain and suffering, and economic losses he suffered as a result of the defamatory statements published about him.

    As for disguising real people to avoid a lawsuit: Even characters in fictional novels have been recognized and identified as having been patterned after real individuals, and some of the authors of these fictional novels have been sued over the characterizations as a result. Because an author will only have a limited number of real people in their lives to include in a memoir, trying to disguise these real people enough to make them unrecognizable is a difficult task to say the least. And, if disguised too much, the book becomes one of fiction not fact.

    As for whether an author should seek the advice of an attorney prior to the publication of their book - well, that is a choice that the author has to make. But the reality is that it costs far far less to prevent a lawsuit than to defend against one.

    I recommend any author have his/her manuscript reviewed by an attorney well-versed in publishing law prior to publishing, especially if it is a memoir that deals with real people. A publishing house will generally have an author sign a contract that includes an indemnity clause, so any liability that arises from the publication will fall on the author.

    As a note, WillLyjo: You expressed a concern, in an early post on this forum, over how senior members on this forum treat posters. I have to say that the posts you have directed at me in this thread are about as contentious as any posts I have seen. I apologize for responding in kind.
    Apology accepted. Now can we start afresh from there? I can see why you are indeed well-respected in this forum. I hope that if any future disagreements between anyone in this forum can be met with a little bit of the class you show in your last post.

    Certainly you have brought up concerns that anyone would need to look into if they were to write anything that would be published.

    Surely this thread has emphasized to the Op the need to carefully manage their written words or face the possibility of legal action.

    Hopefully I have emphasized the fact that even in a sue-crazy society such as ours, if proper steps are taken, one can publish a manuscript without being too overly paranoid about getting sued for any controversy surrounding any characters in it.

    Good luck Quincy and thanks for showing a little class during our contentious debate.
  10. #25
    quincy is offline Senior Member
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    No exclamation points, no extraneous nonsense, an excellent and informative post quoted, and nice things said about me. Hmmm. Your last post may be your best posting on this forum to date, Willlyjo.


    Good luck on the books, to both you and Zippy.
    Last edited by quincy; 12-19-2010 at 09:40 PM.

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