Donna’s Predictions For Publishing in 2012

It’s time to dig out the magic 8-ball app on my iPad and predict what will be coming in the writing and publishing industry in 2012. We’re in the midst of giant changes in the industry. Here’s what I think will happen this year:

Full-service e-books: With all the laid-off folks from the publishing industry floating around, we’ll see full-service shops opening up to assist writers who want to publish their own e-books. I predict the development of consortiums of displaced professionals. These shops will offer editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. Without a doubt.

Consumer protection suits: Now that lawyers have discovered that consumer protection laws can be used against writers and publishers, we’ll see more lawsuits claiming readers were misled into purchasing fiction and nonfiction with advertising. Nonfiction writers have borne the brunt of these cases so far, but consumers will complain that books were advertised as fantasy when they were sci-fi; as nonfiction when they were fiction; as riveting when they fell asleep reading; and as good when the book was a turkey. The winners? Class action lawyers. It is decidedly so.

Trademark suits: With parodies and mashups galore, ticked off writers and publishers are losing copyright lawsuits against writers making big bucks from mocking their work. They’ll turn to trademark for help. You can’t copyright titles and characters, but they might just be trademarks. Watch for more of these cases trying to erode the right to parody. Outlook not so good.

Licensing: Most writers don’t pay attention to the licensing clauses in their contracts. Watch for publishers licensing their entire catalogues, or only some of their books. Unwary authors will wonder where their royalties went as publishers invoke no-pay-for-mass-licensing clauses to avoid paying anything. Will they get paid? Very doubtful.

Noncompete: As publishers insert more noncompete clauses into contracts, we’ll start to see authors sued the same way employees are sued now – to keep them from going elsewhere. Will the courts uphold indentured servitude like they’ve been inclined to do with employees? Signs point to yes.

Alternate revenue sources: Publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. Authors will need to start negotiating with publishers for a share of these revenues, or they’ll be left out. How will authors keep from being left out of the revenue stream? Cannot predict now.

That’s all for 2011. May you have a happy, healthy and prosperous writing year in 2012!

Guest Post: What We Talk About When We Talk About Legal Fiction by Ted Blumberg

Today, I'm lucky enough to have a wonderful guest post from Ted Blumberg, author of The Seven Deadly Sins of Legal Writing.

What We Talk About When We Talk About Legal Fiction

Litigation (from the Latin “litigare” meaning “to quarrel or argue”) is by definition a fight, the courtroom the arena where people who hate each other right down to the DNA win and lose. No conflict, no lawsuit. Since conflict is the lifeblood of drama it’s natural that the “courtroom drama” is a Hollywood favorite.

It’s grand if laypeople want to think lawyers lead action-packed lives full of adventure, money, and sex. But they need to know, in case they ever have to engage with the real world legal system, that what they see in the movies and on TV and read in the latest Grisham is make believe, a fable, a tall tale. But many of my colleagues at the bar get upset about the poetic license Hollywood takes with the profession. Years ago I suffered through The Verdict because of a lawyer in the seat next to me who kept muttering, “That could never happen in real life!” Of course it couldn’t. David Mamet, who wrote the screenplay, and who is himself the son of a lawyer, knows you have to jazz it up. The torpor, the crawly pace that marks most lawsuits, the arcane rules under which they are conducted, and the odd language through which they are expressed would, if accurately depicted on the screen, drive a picture’s grosses into the low three figures.

While I am sanguine about overlooking most of the liberties Hollywood takes, several of the more prevalent tropes warrant exposure or at least, in one of the five dollar words the law favors, explication.

1. Motions Are Not Served By Pulling Them Out of One’s Breast Pocket Like A Magician Producing A Dove: Every episode of (the now sadly defunct) Law and Order included a savvy mouthpiece slipping a motion to suppress evidence from the breast pocket of his or her Armani coat and sliding it under the prosecutor’s nose with a “Take That!” look of smarmy joy. In real life—and certainly in New York, where L&O was set—a motion to suppress is delivered to the District Attorney on the back of a truck. From there it is loaded on to a forklift and served on the prosecutor in charge with the assistance of burly men wearing weight lifter’s belts. The approximate weight and thickness of a tombstone, the typical motion has more exhibits than the ’64 World’s Fair. Just once, maybe on the remaining Special Victims’ Unit leg of the franchise, I’d like to see defense counsel heave a tome riddled with exhibit tabs across the table at the assistant district attorney, who would riffle the pages with his or her thumb and scowl, like in real life.

2. The Right to An Unspeedy Trial: When litigation clients ask me how long their case will take I give them a short, pretentious talk about Shakespeare. Arguably the greatest writer who ever lived, Shakespeare was not one to waste words. In the mouth of perhaps his most famous protagonist, in one of the most famous soliloquies ever—“To be or not to be”—Shakespeare puts this short list of reasons favoring suicide:

…the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of th’ unworthy takes….

If justice was slow four centuries ago, imagine what it’s like today, when litigation is neck and neck with baseball as our national pastime. Indeed, even going to court in New York City, at least in the state court system, is a tedium-laden affair much like making a movie: you spend most of the day sitting around idly, waiting for your case to be called so you can get your five minutes in front of the judge. Except you don’t have a trailer, there is no free food, and no one is pretty.

Despite the creeping pace at which cases slouch through the justice system, the Good Wife seems to try a case a week. So do her peers on almost every legal show I’ve seen. If this were real life, Alicia would still be drafting interrogatories for cases that cropped up in Season One. Of course, no producer or writer could possibly replicate the stultifying slowness of actual litigation. If they tried, the result would be a Warholian anti-film like Sleep, where he filmed a pal snoozing for five hours and twenty minutes.

I don’t blame Hollywood for cutting to the chase (or, rather, the summations) but I do wish clients would understand that the most accurate depiction of a lawsuit’s pace ever presented in fiction is the Jarndyce case from Bleak House, a “scarecrow of a suit” that has dragged on for so long and “become so complicated, that no man alive knows what it means. The parties to it understand it least...but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.” What Dickens sacrifices to hyperbole he makes up for by capturing the way litigation feels to the parties (and, sometimes, to the lawyers).

In short, this let’s-get-it-wrapped-up-by-the-end-of-the-movie schedule is the biggest fiction in legal fiction. I don’t mind, there’s no other way to do it, but laypeople, please understand it’s as realistic as one of those time-lapse films of a flower blossoming from seed to glorious rose in five seconds.

3. Sexual Tension and Hi jinks? Not here: Lawyers on TV and in the movies are played by great looking actors who stay so thin you can see the jaw hinge through the fatless skin of their faces. The talk to each other with a charged flirtiness that suggests (a) they used to sleep together; (b) they want to sleep together; (c) they soon will sleep together.

In real life, while there are reasonably attractive people in the profession, what you usually see when you look across the courtroom aisle at opposing counsel is someone (a) way overweight; (b) reasonably fit but the victim of at least one tragic fashion error; (c) someone morally or intellectually repellent. I say this with no sense of superiority, knowing that it applies to whomever is looking back at me.

Flings between lawyers do happen, but they’re usually not something anyone would want to witness.

Attitude Adjustment Time: We should think of legal fiction the same way we think of science fiction, as a product of the writer’s fancy, inspired by dashes of reality here and there but existing chiefly in another planet and dimension where absolutely anything can and will happen, the laws of gravity and all else we’ve come to know and take for granted are entirely malleable, and the good guys always win in the end.




About the author:

Ted Blumberg practices entertainment law in Manhattan and wrote The Seven Deadly Sins of Legal Writing.

Please Vote For My (Other) Blog Today

I need your help in the race to be named Favorite Blog in the Labor and Employment Category of the ABA Blawg 100. Some of my regular readers might not realize that I write a second blog geared toward helping employees learn about their legal rights and stand up for themselves without getting fired. I've been honored to be named one of the top 100 blogs in the country by the American Bar Association, but now they want voters to choose their favorite blog in each category. That’s why I’m asking you to vote for Screw You Guys, I’m Going Home today and then tell 3 friends, coworkers or staff members. It only takes a few seconds to register and vote.

As the only employee-side blog named in the ABA Blawg 100, being listed with some of my favorite management-side blogs is already a huge honor.

Some writing groups like Red Room have been kind enough to help me put out the word. Please take a moment to help a fellow writer.

Please vote for my blog, Screw You Guys, I’m Going Home, for favorite blog in the ABA Blawg 100 Labor and Employment Category. Here's where you vote: http://www.abajournal.com/blawg100. Voting ends December 30.

Thank you in advance for your support.

Donna

The Good Wife, British Libel Law, And the Power of Twitter

Okay, okay. I’m behind in my TV viewing. Still, Episode 2 of this season’s The Good Wife (The Death Zone) hit a topic near and dear to my heart: UK libel laws. I’ve railed against the draconian British libel laws since Litopia After Dark started. Finally, reforms are in the works. But reforms are slow and the awful effects of these laws are still being felt by writers around the world.

In this episode, our heroine, Alicia, defends a book author against a libel suit in the U.S. When she wins, a bit of libel tourism occurs and the suit is refilled in the UK. Uh oh. For anyone who has followed what’s going on with UK libel, you know that this is a very bad development for the poor author.

One of my favorite actors, Eddie Izzard, plays the evil British lawyer: “God, I do love you Yanks. You are so easy to distract. With our accents and our periwigs and our tea and crumpets. But I am not the England of Big Ben and bobbies. I'm not the England of doilies and cucumber sandwiches. I’m the England of football hooligans and Jack the Ripper. And this England don’t play nice, and they don’t play fair, and they don’t. Ever. Stop.” 

The lawyer going after our hapless writer says, “Do you know the key distinction between the libel laws in your country and mine? The burden of proof is reversed.” Yep, they got that exactly right. In the UK, the writer has to prove that what they wrote was true. That’s a big problem if they’re the only witness, or if they relied on interviews on the scene rather than something written.

The plot is about mountain climbing and a death that occurred in “The Death Zone” where hypoxia takes its toll. The author claimed a wealthy climber failed to help a downed climber and even stole his oxygen.

The story touches on the “super-injunction” where a book, its contents, and even the existence of the injunction is taboo. The court excludes evidence from another book because a super-injunction was issued.

And they overcome the super-injunction through the power of Twitter. This is exactly how the super-secretive proceedings are being circumvented in Britain.

One of the arguments made is the book is a warning to future climbers. They say that a book that is a warning to readers has a qualified privilege applied to it, meaning the law allows it. I’m not sure that’s correct. There’s been a whole brouhaha over scientists who are charged with libel for writing about health hazards. Even an objection to a government application based on health reasons isn’t safe from the British libel laws.

Overall, though, The Good Wife did a fantastic job of exposing the travesty that is UK libel law and the need for reform.

Did you see the episode? I’d love to hear what you thought of it. And I’d love to hear from any experts on British libel laws on the issue of the qualified privilege for a warning. Does this exist? If so, why the heck are scientists getting hit with libel injunctions?

Harry’s Law: Is Advocating For Jury Nullification a Crime?

When I watched the season premiere of Harry’s Law, “Hosanna Roseana,” I was skeptical. The evil prosecutor, played by the wonderful Jean Smart, decided our hero, Harriet (the excellent Kathy Bates) was too formidable an opponent. Harry had previously advocated in the courtroom for jury nullification, that is, the concept that a jury should ignore a law it doesn’t like and refuse to apply it to the case at hand. A jury, of course, is sworn to uphold the law. It’s a controversial subject.

SPOILER ALERT! Don't read if you haven't seen the episode.

The prosecutor had Harry arrested for jury tampering. She said that advocating for jury nullification is illegal. I’m thinking, what a crock! Free speech and blah-di-blah. But I was wrong. There have been people actually prosecuted for advocating jury nullification. 

In the most famous recent case, a professor was handing out pamphlets on the courthouse steps to prospective jurors as they walked into the courthouse, telling them they have the right to jury nullification. This peeved the prosecutors who think juries should uphold the law even if they think it is stupid, or that it would be unjust to apply the law in a particular case. So they slapped the professor in handcuffs. He was convicted and the appeals have commenced.

Other jury nullification advocates have been prosecuted for jury tampering. Courts in Alaska and Wisconsin have found that handing pamphlets to jurors is not protected free speech. In Florida, an injunction against pamphleteers was upheld.

Now, let’s go back to Harry’s Law and whether an attorney who advocates for nullification in the courtroom in front of the judge and jury can be convicted of jury tampering. The answer is, probably not. The federal law says, “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member” commits jury tampering. But the tampering laws generally apply to conduct outside the courtroom and outside the scope of the trial. If the lawyer for the defendant advocates nullification, the judge can hold the lawyer in contempt, instruct the jury to ignore the comments, or even declare a mistrial. But it’s unlikely that the lawyer would be charged with a crime. And the writers got this right too, because in the second episode the judge reamed the prosecutor for having Harry arrested and told her to cut it out.

Getting cutting-edge issues right is one of the reasons why I enjoy watching Harry’s Law. Season 2 is, at least so far, safe for lawyers to watch. Kudos to the writers who did their research.

The Closer Is A Good Example, Except When They're Not

I'm so sorry to have seen the final episode of The Closer this season. I love this show. One of the reasons is that they get the law mostly right. In the summer finale, Fresh Pursuit, they have a scene with an excellent representation of a summary judgment argument. Brenda is a defendant in a suit, along with her department and many others. The judge gets the standard for summary judgment right: they have to show there are no disputed facts, and that under those undisputed facts they're entitled to judgment as a matter of law.

The lawyers make arguments that I found sensible and within the scope of a summary judgment argument. Even the plaintiff's lawyer arguing for a continuance based on newly discovered evidence made sense. It was a legitimate argument to make.

My only beef came at the end. The plaintiff's lawyer demands a meeting with Brenda alone in a conference room after the case is over. Then he threatens her, insults her, and says he's filing another suit against her. He knows she's represented by counsel. There's no way Brenda would have gone into that room. She has more sense than that. It was ridiculous. I hope her lawyer files a complaint with the judge and that Brenda files a complaint with the Bar. He needs to be disqualified from handling the case, or at least sanctioned severely.

The rules are clear. If a lawyer knows a party is represented, he can't communicate with them outside their lawyer's presence unless they have permission from their lawyer. The fix would have been easy. He came during a celebration over the case. He could have asked her lawyer and he might have, in a moment of celebratory negligence, said, "Sure, knock yourself out." He wouldn't have, but it would have been better than this. They could also have had the scene with her lawyer and her present, say, outside the station after the celebration. I hope they don't make more mistakes like this next season. It's one of the few shows lawyers can safely watch.

Chinese Walls and Other Idiocy on Suits

This will be my final rant about the last few episodes of Suits this season. Hopefully they'll get it together and I can use them as a good example again next season.

Harvey has to figure out how to divide a tabloid tycoon's multi-million dollar estate between his two daughters who happen to hate each other. Jessica, the firm boss, places Louis, Harvey's arch-nemesis, in charge of one daughter and Harvey of the other. Louis and Harvey will be pitted against each other in dividing the assets.They say there will be a "Chinese Wall" and they won't share info with each other. Then they sneak around spying, backstabbing, lying and tricking each other in a game they play against each other to see who will "win."

Hello? The firm represents both clients. That means the firm has to act in both clients' best interests. It's obvious they cannot. If they can't, then they are disqualified from representing both clients. The courts and the Bars don't let the "Chinese Wall" concept fly.

This episode was a travesty. Sure, it was funny watching the guys with their antics, but it couldn't happen in real life, at least not ethically. The writers either needed to acknowledge that the lawyers were totally off track ethically and that they could be disbarred for it, or they needed to do something else. The writers should have had the firm get both of these clients represented by independent counsel. Then they could act on behalf of the estate.They could still show Harvey and Louis bickering about who should get what, but it would have been funnier watching them have to act as neutrals in front of the two lawyers representing the daughters and pretend they wanted a fair division.

The way it turned out, the daughter who "lost" should sue the pants off the firm. The failure to share vital information was malpractice.

Suits Should Know Better - Working Against A Client Is A No-No

This is my second post in my I'm-Getting-Really-Frustrated-With-Suits-So-Make-It-Stop rant. In the episode called Shelf Life, the writers commit what I consider to be one of the biggest faux pas of bad legal writing: working against a client. You can't do it. Ever.

In this episode, Mike and Harvey have to fire Stan Jacobson, the senior vice president of their client and accounting firm, Dreibach Accounting due to phony credentials. Jacobson claims he's getting railroaded  because he recently discovered some illicit book-cooking and refuses to sign. So far, so good. Then they decide to investigate his allegations. That's fine. They're doing their due diligence in case he sues, and they represent the corporation, not Jacobson's boss, so they have to figure out if the corporation has exposure. Here's where it goes bonkers.

They decide he's right. So instead of doing what they were told, they decide not to push Jacobson to sign. Instead, they start acting on behalf of Jacobson and against their client. Whoa doggy. After that, I lost my ability to concentrate on the plot. I was too busy screaming at the TV screen. I still like the show because I enjoy the characters and love the main plotline since it really happens (a nonlawyer faking his way in a big firm, pretending to be a lawyer). But if they're close to losing me, then imagine how many lawyers and people involved in the legal system they lost who tuned into the show for the first time.

I have one more episode to rant about. They need to get their act together next season or they'll lose me as a fan, along with everyone else who knows they're not bothering to get the legal stuff right.

Suits Goes Haywire on Switching Firms, Talking To Clients

In the "Undefeated" episode of USA's summer show Suits, the writers went way off track on some key points. I found it hard to enjoy the show even though it had the delicious Eric Close on as a guest star, playing a lawyer whose shady tactics keep our heroes busy. The show centered around a case involving a toxic chemical that exposed people who worked at and attended a school. They have cancer, and they're suing. In comes Close, playing a lawyer who brags he's never lost. That raises Harvey's hackles, because he is also undefeated. (I'll even let slide that all lawyers lose cases unless they settle them instead of taking them to trial).

There were key problems with this show. Here are the main ones:

Paralegal switching firms: A subplot involved a paralegal who had worked on the case being offered a job at Close's firm. She was angry and said she'd tell them all about the case. That's an instant disqualification for Close's firm. In fact, I was hoping that it was Harvey's sneaky tactic to do just that. Instead, there was much hand-wringing and they finally convinced her to come back. Paralegals and secretaries can't switch firms and give out client confidential information any more than lawyers can. It's a major amateur-hour mistake. The writers have been pretty good up to now, so I was surprised by this.

Talking to clients: The writers had Close sending representatives to talk to Harvey's clients. Hello? In what universe? Harvey would have run to the judge and the Bar so fast that Close wouldn't have had time to collect his toothbrush before he was thrown in jail for contempt or disbarred. Lawyers can't talk to someone they know is represented without their lawyer's permission. And they can't get a third party to do it either.

Calling a meeting with clients: Then the writers had Close use a third party to call all of Harvey's clients to a meeting in a hotel to hear a settlement offer. Harvey and our hero, Mike, talked about how, if Close spoke to their clients, they would be able to go to the judge. They rushed to the meeting. Then Close relayed the settlement offer - not to the clients, but to Harvey, loudly enough so the clients could hear. Oh no! The lawyers commence hand-wringing again. They've been outsmarted. Huh? They had Close dead to rights. Their clients should have been called to testify or provide affidavits about who contacted them about the meeting, and Harvey could have gone to the judge. Again, the third parties contacting the clients is as bad as the lawyer doing it himself.

This episode was a disappointment to me. So far, the writers had been pretty good. I had nits to pick, but nothing too awful. I have two more episodes to complain about in other posts. I'm worried about the show. If they can't be bothered to get the legal stuff right, they'll lose me as a fan, along with 1.1 million other lawyers who notice when they get it wrong.

Eyewitness Testimony Is Crap - Now I Have Proof

Some people gave me a hard time when I wrote this post about how circumstantial evidence was way better than eyewitness testimony. Well, now I have proof that eyewitness testimony isn't worth much, despite the fact that juries absolutely love it. In this article (requires a login) and this case I get vindication. A New Jersey court has found that:

In 2006, this Court observed that eyewitness
“[m]isidentification is widely recognized as the single greatest
cause of wrongful convictions in this country.” State v.
Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see also
Romero, supra, 191 N.J. at 73-74 (“Some have pronounced that
mistaken identifications ‘present what is conceivably the
greatest single threat to the achievement of our ideal that no
innocent man shall be punished.’” (citation omitted)). That
same year, the International Association of Chiefs of Police
published training guidelines in which it concluded that “[o]f
all investigative procedures employed by police in criminal
cases, probably none is less reliable than the eyewitness
identification. Erroneous identifications create more injustice
and cause more suffering to innocent persons than perhaps any
other aspect of police work.” Int’l Ass’n of Chiefs of Police,
Training Key No. 600, Eyewitness Identification 5 (2006).
Substantial evidence in the record supports those
statements. Nationwide, “more than seventy-five percent of
convictions overturned due to DNA evidence involved eyewitness
misidentification.” Romero, supra, 191 N.J. at 74 (citing
Innocence Project report); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011)5
(finding same in 190 of first 250 DNA exoneration cases). In
half of the cases, eyewitness testimony was not corroborated by
confessions, forensic science, or informants. See The Innocence
Project, Understand the Causes: Eyewitness Misidentification,
http://www.innocenceproject.org/understand/Eyewitness-
Misidentification.php (last visited August 16, 2011). Thirtysix
percent of the defendants convicted were misidentified by
more than one eyewitness. Garrett, supra, at 50. As we
recognized four years ago, “[i]t has been estimated that
approximately 7,500 of every 1.5 million annual convictions for
serious offenses may be based on misidentifications.” Romero,
supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D.
Penrod, Mistaken Identification: The Eyewitness, Psychology, and
the Law 7 (1995)).

Wow. Stunning commentary on eyewitness testimony. It's mostly wrong. Put a group of people in a room. Have someone they don't know run in and grab the speaker's purse, then run out. Then bring three people with similar looks in the room and ask them which one did it. The group will always pick one of them. When they find out it was none of them, they're shocked. How could this be? They saw it with their own eyes! You know what the song said about lying eyes . . .

One of the great themes of injustice today is the fact that many people behind bars are innocent. Some of them are on death row. It's a wonderful story line for writers. Does your innocent character fight to prove he should be released? Do they get out and take revenge? Or have they given up? Does someone need to inspire them to fight to clear their name? Or is your character the eyewitness who realizes they might have been wrong? There's so much inspiration you can get thinking about the unreliable eyewitness.

If you're writing about a crime, just remember: your eyewitnesses are crap. Your evidence may be "just" circumstantial - and that's the best kind.

Relaying Settlement Offers to a Client is Never Just a Formality

On a recent episode of Suits, after a $15 million settlement offer was relayed, the lawyer declined huffily without speaking with his client. He told the client later that he was relaying it to them only as a formality. I should be glad that at least the lawyer in this show discussed the offer with the client. In too many shows and books, the lawyer refuses or accepts offers on their own.

The ABA Model Rules of Professional Conduct, which every state but California uses as the model for their own rules, say:

1.4(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

The comments to the rule explain:

  [A]lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

As to whether the lawyer has to accept the client's decision, the rules are clear:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Relaying the settlement offer to the client isn't a just a formality - it's a requirement. It's not that hard to write the scene correctly. The proper response is, "I'll relay it to the client, but I'll recommend against it." The only way the lawyer can shoot it down is if the client already said they wouldn't accept anything under x-amount and authorized the lawyer to turn down anything under that number.

Unauthorized Practice of Law on Memphis Beat

I enjoy the TNT show Memphis Beat, about a singing cop (played by Jason Lee of My Name Is Earl) and an offbeat police department in Memphis. They don't usually get my lawyer hackles up too much, but the latest episode, Ten Little Mempians, had a howler of a mistake. A character in the show, an ex-con who graduated from law school, decided he wanted to represent his boyfriend who was being accused of a crime. He made the statement that, in Tennessee, there's a case which allows graduates of an accredited law school who are awaiting bar exam results to represent clients.

My shoe almost went through the TV screen. One of my pet peeves, a really lazy writing mistake, is having characters engage in the unauthorized practice of law. I knew that here in Florida there's no way an unlicensed attorney could represent anyone. So I checked Tennessee law and found their unauthorized practice of law statute, which says in pertinent part:

"No person shall engage in the'practice of law' or do 'law business' . . . unless such person has been duly licensed therefore."

Pretty darned clear. Lawyers have to be licensed. That means they have to pass the bar and a background check in their state. But I double-checked. I called the Tennessee Attorney General's Office and spoke to Colleen Doty, Assistant Attorney General. She works in the Consumer Protection Division handling Unauthorized Practice of Law, and she was kind enough to aid me in my quest to make shows watchable for lawyers. She confirmed that there is no such case allowing a law grad to practice law without a license. She also chuckled knowingly when I said I write about shows that get the legal stuff wrong: "You must have lots to write about."

Indeed.

How could the writers have fixed this glaring problem? How about having the boyfriend be a newbie lawyer? Just sworn in yesterday is better than never sworn at all. It was silly and irritating and really ticked me off.

Unauthorized practice of law is a crime. Every lawyer and law student knows this. TV shows and books that have law grads, friends, neighbors, family members representing a character in court or as a lawyer when they aren't a lawyer ought to also show that person getting cuffed and hauled off to jail. No judge or police officer in their right mind would allow an unlicensed person to represent a client.

Do Colleen Doty and me a favor so we don't have to fetch our sneakers out of a smoking, broken TV screen. Make sure your characters are lawyers before you have them practice law. Screw up and I'll sic the Tennessee Attorney General on you.

Do check out Memphis Beat though. I think you'll like it.

Life Imitates Suits

I couldn't resist sharing this headline with you after I said how much I enjoyed the show Suits. Just in case you thought it was unrealistic that someone could pass himself off as a lawyer at a big firm, here's one who did just that. Apparently a guy worked for the firm Clausen Miller in New Jersey for two years before they realized he was a phony.

His firm bio said, "Before entering practice, [the phony] was law clerk to multiple judges of the Superior Court of New Jersey, including the presiding civil judge of Union County." The website went on to say he graduated cum laude from Siena College in 1997 and Seton Hall University School of Law in 2000, and was admitted to the New Jersey bar in 2000 and the New York bar in 2001. It's looking more and more likely that none of these statements were true.

The potential consequences are an 18 month prison sentence and a $10,000 fine. To the firm, they have to notify the judges, clients and opposing counsel and face loads of malpractice suits. Opposing counsel, I'm sure, will be particularly understanding and not openly laugh at them at all.

So, life imitates art. Gotta love it.

For a Decent Summer Legal Show, Check Out Suits

            Suits, the new USA summer show about a guy passing himself off as a lawyer, had me worried at the beginning. The very first scene was a real lawyer lying to a client to get a deal closed. That’s a huge, disbarrable no-no. The writers redeemed themselves when the characters discussed how interested the Bar would be in that incident. Two characters threatened each other with mutually assured destruction if one reported the other. I was so happy. Maybe I’m easily amused.

            Then they had a sexual harassment case as our hero’s first case, and I cringed. Shows about my area of practice are always the most difficult for me to watch because they get so much wrong. But Suits did a really nice job. Sure, they took some license, but not too much. They got the concept of quid pro quo sexual harassment right. And then they showed what happens far too often in the real world. You see, the Supreme Court says sexual harassment victims have to report the harassment to Human Resources and give them a chance to fix it. If they don’t do it, they lose their right to bring a case.

            Here, the victim reported it. Sure enough, two months later, she was fired for alleged performance problems. Do you have any idea how many times I hear the same story in real life? Try about once a week. Again, I was unduly happy.

            They got big firm life down to a tee – the first year associates being treated like slaves, frowning on them leaving before 9 p.m., the bickering among partners, the competition, and the cutthroat atmosphere.

            I don’t usually comment on the actual writing, but I have to here because I really enjoyed this show. The characters were fun, dialogue snappy and the plot interesting. I’ve said before that I tend to watch all the USA shows, and this will apparently be no exception. Hopefully the writers will keep up the good work.

Franklin & Bash Get the Law (Mostly) Right

            I haven’t decided whether or not I’ll be watching Franklin & Bash on a regular basis. I do try to give the latest legal dramas and comedies a chance, and this one is a rare summer legal comedy. It stars Mark-Paul Gosselaar, who I remember fondly from the old Saved By the Bell series. He’s all grown up and playing a lawyer along with Breckin Meyer. They are two outlandish ambulance-chasing lawyers who get convinced by senior partner Malcolm McDowell (one of my favorite actors) to come work for a big fancy law firm.

            The first scene showed one of the bad boys of law disobeying a judge’s order. It made me very happy that this landed him in jail (briefly) for contempt. That’s exactly what should happen.

            The big plot line showed a junior partner plotting with a corporate client to throw their employee (also a client) under the bus. They wanted to blame what happened in the lawsuit on their employee so they could skate. Very realistic.

            Of course, I’ve ranted before about lawyers working against clients. Fortunately, our heroes found out about the plot to turn on a client, objected, and then engaged in silly antics to expose the plot and protect the employee-client. They pointed out that the firm had a duty to both clients. That kind of legal-correctness gives me goosebumps.

            The only major part they got wrong was that they also couldn’t turn on the corporate client. The firm had to withdraw from representing both clients and let them get separate representation. But compared to what happens in most legal shows, this one was almost a law school ethics class.

            The reason I don’t know whether I’ll watch regularly is that most of the plot was silly and the characters just aren’t that likeable. I’ll check it out another time or two and see if they can get me hooked.

            For now, I can label Franklin & Bash as (legally speaking) relatively safe for lawyers to watch.

Writing About Juries? Don’t Make These Gaffes

I want to nitpick one of my favorite shows, The Good Wife, again. A couple gaffes with jury scenes really threw me out of the moment recently. It seems that most people who write about juries have never actually seen jury selection or how bailiffs handle juries, because I see lots of stuff that’s flat out wrong when I read or watch jury scenes. Here are two things not to do: 

Jury selection: When the lawyers do jury selection, they have the opportunity to ask questions of jurors. Then they get to agree with the juror being seated or challenge the juror. What will (probably – I won’t say never) not happen is that the lawyers object to jurors in front o of the jury pool. This happens after the questions (voir dire) are asked and the jury is sent outside. Prospective jurors are sent to the hallway or a room away from the lawyers and judge.

Then the judge will go through the list, something like this:

Judge: Juror number 1.

Plaintiff’s lawyer: Accept.

Defense lawyer: Strike. (That’s a peremptory challenge and the lawyers will each get 2 – 3, sometimes more – they have to use them carefully).

Judge: Juror number 2.

Plaintiff’s lawyer: Challenge for cause

[Argument ensues as to whether there is cause to strike the juror for bias. The juror could be called in to be asked more questions. Then the judge will rule. If the juror is stricken for cause, the lawyer doesn’t have to use up one of those precious peremptory challenges].

Once the lawyers go through the whole list and have 6 or 12 jurors and the alternates picked, the judge will ask if the lawyers want to make any back-strikes. That means they can use up the rest of their peremptory challenges. If any more jurors are stricken, the judge then asks the lawyers about the next juror in the pool.

When the jury is picked, the judge calls the pool back inside, calls up the jurors who were picked, and thanks the rest for their service. In some jurisdictions, the remaining jurors are excused for the day. In some, they’ll be sent back to the jury pool room to see if they get picked for another jury.

In The Good Wife, it would have been easy to fix the problem. Show the juror answering, then cut to the scene where the lawyers are objecting. Simple.

Communications in front of jurors: The writers also showed a scene where a lawyer, accidentally on purpose, was on his cell phone in the rest room talking about the case when a juror was in there with him. Turns out, two jurors were in there, but that’s another story. I’ve never seen this happen and, at least where I practice, it couldn’t happen. Jurors are usually escorted to/from the restrooms by a bailiff, who stands outside and shoos everyone away while they’re in there to avoid just this sort of thing. If the lawyer does see a juror in the restroom, they are supposed to stay far away. Any contact with a juror, even a “hello” in the elevator, has to be reported to the judge.

I don’t know how the writers would fix that problem other than to delay the trial another way. That storyline was improbable, to say the least.

If you’re writing about a jury trial, my best recommendation is go down to your local courthouse and watch one. It’s good experience and will give you the realism you need for your story. Don’t use television to get legal information for your stories. It’s usually wrong.

Jimmy Carter Suit Over – For Now

I wrote about the suit against Jimmy Carter a few weeks ago. A group sued Simon & Schuster and the former president regarding Carter’s 2006 book Palestine: Peace Not Apartheid. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations, saying the book was falsely advertised as nonfiction. They claimed they were misled into buying the book and wanted their money back.

While this wasn’t the first consumer protection case against an author (thanks, James Frey), it was the first time the argument was made that the laws could be utilized on behalf of readers who disagreed with a book’s contents and the way it was advertised.

I warned that disaster would fall if Simon & Schuster paid these folks to go away. I said the floodgates would open. For nonfiction, the danger was that one poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk. I was also concerned that fiction authors would be at risk. What would happen if they advertised a book as “exciting” but a reader finds it boring?

Well, you’ll be glad to hear that, at least this time, the danger has passed. The plaintiffs withdrew their suit and got no money. While Simon & Schuster proclaimed victory, the plaintiffs said they plan to refile in NY state court.

This is still a suit to watch closely if it’s refilled. I hope Simon & Schuster continues to stick to its guns and fight this lawsuit. Stay tuned.

Looks Like We Need Another President: The Event, and What Really Happens When the President is Incapacitated

I was surprised when I watched this week’s episode of The Event and saw them swearing in the Vice President to be President. The plot is that the aliens who have infested the planet poisoned the President, intending to kill him. He’s in a coma. So the Vice President and Cabinet met to have him declared incapacitated. Then the Vice President was sworn in as President. I’m thinking, huh? He’s not actually the President yet. How can they swear him in as President? What gives?

So I looked it up. The writers got it half right. The 25th Amendment of the Constitution says:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The Vice President and Cabinet meet, declare him incapacitated, and they prepare a written declaration. The Vice President under these circumstances becomes Acting President. He has the power of the Presidency but the President is still the President. The Constitution requires that the VP immediately assume the job duties once the Speaker of the House and the President pro tempore of the Senate get the declaration. He doesn’t have to be sworn in, and nobody has ever actually been sworn in under these circumstances, or where the President has voluntarily said he was going to be temporarily incapacitated (a different provision in Article 25). Remember, he was already sworn in as Vice President. (Maybe one of these days I’ll be able to use the word “she” in this context. Or is that too far off into science fiction?)

Presidents have voluntarily turned over authority three times when they were undergoing medical procedures. Interestingly, when Reagan was shot and underwent surgery, George H.W. Bush refused to convene with the Cabinet to declare him temporarily incapacitated. He apparently felt it would be akin to a coup.

The Presidential Succession Act of 1947 provides for what happens if neither the President of Vice President can serve. In that case, there’s a line of succession starting with the Speaker of the House. Whichever one in the line takes over has to step down from their office. They are then sworn in as Acting President. They still have to step down when the President is able to serve again.

I give props to the writers of The Event for getting it half right. They did have the Cabinet convene and declare the President incapacitated. I realize the swearing in was more dramatic, but it was just plain wrong. The President is still the President until he dies. It might have been more interesting to have had the good guys (who correctly suspect the VP had a hand in the poisoning) shoot down the idea of the swearing in and constantly remind the VP that he’s only Acting President.

I also think Article 25 provides some interesting potential plots if the writers want to keep the evil Vice President in office a little longer. He could say the President is still incapacitated and then Congress will have to decide.

If you actually look up the laws that apply to your story, sometimes you’ll get great ideas you never thought of (which is the whole purpose behind The Writer’s Guide to the Courtroom). Doing your research pays off. Try to get it right.

If You’re Writing About Sunken Treasure Hunting, You’re Using Admiralty Law

I got really excited about this article because when I teach about using the law in writing I always challenge people to tell me why admiralty law can be pretty exciting. They look at me with blank stares, because it sounds deadly dull, doesn’t it? But admiralty is more than cruise ship accidents. That’s because admiralty law covers anyone who finds or is hunting for sunken treasure.

In the article, a group of treasure hunters called the Black Swan Project found over $500 million in treasure on the ocean floor. Most writers assume that the law is “finders keepers” but it’s way more complicated than that. In this case, Spain made a claim on the treasure because they were the original ship owners. Peru says Spain stole the treasure and they want it. Now a researcher whose research was used to find the ship has made a claim on the loot too. So far, the courts are letting him proceed with his claim.

The law of salvage is what governs the claim to the loot once it’s found, and the law is complicated. So never assume that your treasure hunting character will end up rich if they find that pot of gold.

In The Writer’s Guide to the Courtroom, I talk about admiralty law and admiralty lawyers in more detail. I think admiralty lawyers make great characters. Maybe your treasure hunter has a lawyer on retainer. Or maybe the insurance company who insured the sunken ship has their own admiralty lawyer come after your character.
However you handle it, make sure you get it right.

The Good Wife, Emotional Distress, and Employees

Last night’s episode of The Good Wife was called “Wrongful Termination.” (Yes, I'm writing about The Good Wife again. Sorry, but it's a great show). I cringed at the title because Illinois, like every state in the nation but one, is an at-will state, meaning employers can fire or discipline employees for any reason or no reason at all. So my expectations were low.

I got a pleasant surprise.

It’s still not clear to me what the lawyers’ theory of the case was, but the best I can decipher from the arguments is that they were claiming the tort called “intentional infliction of emotional distress.” Illinois, unlike my home state of Florida, does allow this type of case to be brought against employers.

The facts were that a company needed to do a 20% workforce reduction. Instead of laying people off, where they’d have to pay severance under their severance policy, they decided to make life so miserable that people would quit. They turned off the a/c, required ridiculous work hours, publicly berated and humiliated employees who were targeted for termination. Three employees committed suicide, one actually at work.

In order to prove a claim for intentional infliction of emotional distress, the employee has to prove: (1) the defendant’s conduct was extreme and outrageous, (2) defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress, and (3) the defendant’s conduct did cause severe emotional distress. That sounds like half the employment cases I handle, but Florida’s standard for what is “extreme and outrageous” is virtually impossible to prove.

In Illinois, however, they’ve allowed this kind of case against employers. For instance, in Naeem v. McKesson Drug Company a former employee was deliberately given high-stress and physical work duties during her pregnancy, to the point she needed to take short term disability leave. When she came back, she was repeatedly disciplined, humiliated and berated in meetings, and put on impossible deadlines, to the point where she began to suffer physical symptoms, considered suicide, and had to go into counseling. She was terminated. The court found that this behavior was extreme and outrageous enough to support a claim for intentional infliction of emotional distress and the jury awarded $495,000.

In general (in all states), insults, indignities, threats, annoyances, oppressions, trivialities, vulgarities or other abusive expressions aren’t enough to bring a claim against an employer. The conduct has to be so extreme and outrageous that it goes outside all bounds of decency. That’s tough to prove. In Florida, racial epithets, nooses, unwanted touching, obscene comments, and other pretty extreme behavior is not extreme enough. (In one case, the Florida courts did allow a case where there were death threats, and threats to rape the plaintiff’s children and other relatives, but it wasn’t the employer doing it. I wonder what would have happened had the perpetrator been a coworker).

Interestingly, the writers didn’t tell us how the case came out. Instead, it settled quickly when they uncovered the fact that the officers had looted the pension fund. Pretty realistic in today’s world. Still, I thought the writers did a good job of laying out what just might have succeeded as a claim for intentional infliction of emotional distress in Illinois.

One minor caveat – it was a class action in the show, and I think a class action for an intentional tort is pretty unlikely to succeed. They could have just brought the case in the names of the individuals who were driven out and had the same arguments. But the class action aspect was such a minor plot point that it didn’t bother me much.

The writers of The Good Wife bring up a great point. In today’s economy, shouldn’t more states recognize that deliberately making someone miserable to get them to quit is extreme and outrageous? With the average time to find a new job running at about 9 months, and many people finding it’s taking much longer than that, doesn’t the economic situation change the way we should look at employment?

Why bother to torment someone out of a job when you can fire at will? It’s to deliberately keep them from getting unemployment and to deliberately circumvent any entitlement to severance under severance policies and contracts. Now I call that extreme and outrageous.

The Good Wife Doesn’t Know Much About Mediation

Why the heck can’t TV shows get mediation right? I mean, if a comedy like The Wedding Crashers can do it, why not courtroom dramas? Fairly Legal has made a mockery of what mediation is about, but I expect USA shows to be silly. Now comes The Good Wife, and I usually expect better from them. I’m a mediator, and this kind of error hurts my feelings because the writers clearly don’t give a hoot about getting mediation right. Mediation is suddenly popular with writers, so why won’t they find out what really happens in a mediation session?

Getting it wrong

Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.

The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.

The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.

The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.

The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.

Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.

The Suit Against Jimmy Carter: Why Writers And Publishers Should Be Up In Arms

I covered the suit filed against former President Jimmy Carter and Simon & Schuster regarding Carter’s 2006 book Palestine: Peace Not Apartheid a couple weeks ago on The Debriefer. Literary agent Peter Cox and I spoke about the dangers to writers and the publishing industry if the case succeeds. The more I think about this case, the more it bothers me, so it bears more analysis.

The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.

The New York Consumer Protection Act provides:

The term "false advertising" means advertising, including labeling, of a commodity, ... if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.

Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?

The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”

The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.

The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.

Morons.

If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.

Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.

How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.

When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.

Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.

Danger Will Robinson. Here there be dragons.

The Good Wife, The Right of Publicity, And Why Writers Should Be Scared

A recent episode of The Good Wife, a consistently good legal drama, focused on what I think is one of the most important issues affecting the writing and publishing industry today: the right of publicity. In the show, a character similar to Mark Zuckerberg didn’t like the way he was portrayed in a movie similar to The Social Network. He sued for defamation. Enter our hero law firm.

The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.

Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.

Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.

This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.

There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.

• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.

• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.

• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).

• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.

That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.

I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.

But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.

Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.

To recap the risk if all these cases are won, the following will be pretty much off limits:

• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)

What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.

Fairly Legal Says You Can’t Copyright a Recipe – They’re Only Partly Right

I’ve found some peace with the show Fairly Legal, about a woman they call a mediator who does nothing that even vaguely resembles mediation. The way I’ve done it (because I still like the characters and the legal issues) is that I just keep telling myself she’s something new – a unique entity in the law.

In my mind, I call her a Conciliator. The weird part is, I think there’s room in the legal system for someone like this. It would be sort of a mediator, sort of an arbitrator, and sort of an investigator. There’s nothing like this now, and I suspect that this show might spark such an entity into being. She’s closest to an arbitrator, because arbitrators can investigate to some extent and in a very limited way. So I’m not writing to complain about how they went right off a cliff on the whole mediator concept.

Instead, I’m writing about a recent show involving a barbecue sauce recipe. The conciliator (I absolutely refuse to call her a mediator) made this statement: “You can’t copyright a recipe.” I shook my head, first because if she were a mediator she couldn’t give legal advice (okay, I’m going to complain a little), but second because she was wrong.

It’s true that you can’t copyright a list of ingredients. But you can absolutely copyright anything you personalize – the instructions, illustrations, photographs, comments, explanations – can absolutely be copyrighted. Basically, anything that is literary expression is subject to copyright. Also, a collection of recipes can be copyrighted. The only problem is, if you have a secret ingredient, applying for a copyright will necessarily require you to disclose the secret. So you might not want to apply for a copyright if you have a secret you want to protect.

There are other legal protections for recipes that might be even better than a copyright. Coca Cola and the KFC secret recipe are trade secrets. Nobody is allowed to tell the ingredients, processes or methods to a trade secret. So if you use your secret recipe in your bakery or restaurant, you can protect your recipe from disclosure. Make sure your employees sign an agreement recognizing they can’t disclose trade secrets, and make sure you zip your lips. If you give the recipe to the Girl Scouts for their fundraising recipe book, your trade secret is gone.

The other possibility is a patent. The recipe has to include something that’s not obvious, so most recipes won’t qualify. Once it’s been disclosed, you only have one year to apply, so if you baked your secret pie for the PTA, your clock is ticking. Mostly, patents won’t be available for recipes. Patents that have been successful usually involve things like ingredients or processes to make food lower calorie, have a longer shelf life, keep a better shape or texture, or work in new devices (microwaves, convection ovens, or whatever the latest technology is).

How many chefs watched that show and remember the phrase, “You can’t copyright a recipe?” How many won’t bother suing when someone copies their beautifully written directions and processes as a result of bad TV legal advice? If someone uses your recipe in their cookbook, contact a lawyer who knows about intellectual property.

If the writers would just buy a copy of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, they'd have a shot at getting this stuff right. :)

Never, ever get your legal advice from watching a TV show. Or reading a blog for that matter.

The “V” Defrocking - Even Priests Get Due Process

Granted, the science fiction show “V” isn’t big on realism, but they committed a giant honking clunker last night when they showed their priest character getting laicized the day after he made a speech against the alien Visitors. The plotline is that Anna, the head of the Visitors, got to the Catholic Church in Rome by offering to let them send missionaries to their ships. The idea of so many new converts was appealing, no doubt. But her deal was that they had to stop priests from speaking out against them. The whole purpose was to stop one activist priest who is onto their lizardly nature and dastardly plans.

So our hero priest refuses to be cowed, makes another speech, and the next day he gets a letter that he’s been laicized. The elder priest who hands him the letter demands his collar. Bam! He’s no longer a priest.

I’m sitting there smacking my head. What the heck? As someone who was raised Catholic (lapsed), I know that they have rules and procedures for everything. They move at a glacier’s pace on any major decision. Remember all those pedophile priests they couldn’t get rid of? There’s a reason why.

So I looked it up. It took me about 15 minutes on the great wide interwebs to find out how a priest is legally defrocked. The writers could have bothered to at least look at Wikipedia, but there are better sources out there.

Laicization takes years. The church actually “streamlined” the process relating to pedophiles in 2001, but it’s still a long procedure. For those cases, the Congregation for the Doctrine of the Faith handles the defrocking. Even with abusers, the bishops can’t just zap the offending priests.

The laicization process involves sending a letter to the priest telling them the process is beginning. They then go through a tribunal. They’re given the right to canonical counsel (priest lawyers) who will defend them. The Church has to provide lots of documentation on the grounds. Assessors determine if the case is valid or not. If they think it is, then the Cardinal has to approve it. Only then will it go to the Pope with the Cardinal’s recommendation. The Pope is the only one who has the ability to laicize a priest or deacon.

The law governing laicization is the Code of Canon Law. A cardinal interviewed in a news story about the glacial pace of removing pedophiles said, "The right of a priest to defend himself is sacred, including in these cases. The right to defend oneself is internationally recognized and always preserved."

Due process is sacred, even in a religious institution.

Lazy writing is weak writing. Instead of staying involved in the story I was sucked right back into reality with that humongous clunker. It was such an easy fix that there’s no excuse.

What the bishops can do is remove an offending priest from ministering to a parish. And that’s what “V” should have done. Like any employer, the church can give you a totally crappy job to try to make you quit. They could have transferred him to Siberia, given him office work, or made him in charge of polishing collection plates and I’ve have believed it.

Get it right, people!

If My Character Has Amnesia, How Do they Get ID? Can They Get a Job?

On Litopia Writer’s Colony, I have my own section, Donna’s Domain where members can ask me questions about how the law affects their characters, plot, and settings. Here’s a question we answered on The Debriefer (my show on Radio Litopia – episode where I answered isn’t up yet but should be soon) and I thought it applied to enough stories that I’d also address it here.

Litopia’s J Katrin wrote:

“I have a question about issues of legal identity. If a character cannot remember who she is, and authorities are for whatever reason unable to discover her identity, what options are there for obtaining gainful employment, etc.? Without a birth certificate, you can't be issued an SSN, so what can you do if you don't have someone to take care of you and aren't considered dangerous enough to house in a prison or psych ward?”

Well, I found a real life story that may help with the answer. There’s a man they call Benjamin Kyle who has amnesia. He’s around 60 and they found him in 2004, naked, lying by a trash container. They’ve tried everything - DNA, prints, dental records, FBI databases, NCIC – and they haven’t found any clues to his identity. He lived in a homeless shelter for three years, then a nurse decided to step in and help. Since then, he’s even been on Dr. Phil, had all kinds of medical treatment, and still no luck.

Here’s where the story touches on J Katrin’s question. Congressman Kilpatrick has been trying to help him get a Social Security card. Here’s what Kyle says happened: "They have talked and talked to [the] Social Security [office], and they are adamant that the presumption is that I already have a Social Security card, so they cannot give me another one. They have asked for medical reports, and we have given them all that. Still, nothing."

Without a Social Security card, he can’t legally work. He can’t get a passport. Heck, he can’t prove he is a U.S. citizen. He works odd jobs and lives with the nurse who is helping him. He relies on a church for food donations.

I asked a Florida lawyer I know who handles Social Security issues, Lyle Masnikoff, and here’s what he said about it: “This Social Security question is very interesting. If the person can be identified even though they don't know who they are, I would think that the person would use the same SS# and info to work as prior to the amnesia. However, if no one can identify the person, the person would have to get a new SS # which is not legal unless you have permission from a judge and a court order. Individuals placed in Witness Protection sometimes receive a new social security number, but other than that the chances are slim.”

So there you have it, from real life and from an expert. In these days of Homeland Security, immigration concerns, and crackdowns on employers hiring undocumented workers, your character with amnesia will have a tough time. Their best bet will be to hire a lawyer to try to get a court order to issue a new Social Security card. Otherwise, they’ll have no driver’s license, passport, work permit, entitlement to government benefits – nothing. They’ll have to rely on the kindness of strangers until their memory returns.

A great plotline, don’t you agree? Fantastic question, J Katrin!

If you have questions like this one about how the law affects your story, ask in the comments here or check out Donna’s Domain on Litopia.

Fairly Legal is Unfairly Inaccurate About Mediators

I try to give all the new legal shows a fair chance. So when I started watching Fairly Legal, the new USA show, I was really hopeful. USA has a great track record of developing shows I enjoy. In fact, I think I watch all of their original shows: Burn Notice (one of the best shows on TV), Psych, In Plain Sight, White Collar, Royal Pains and Covert Affairs are all season passes on my TiVo. So I thought, yay, finally there will be a fun legal show I can watch.

The fact that the show has a mediator as its lead character made me really excited, since I’m a mediator, since I talk about mediation in The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, and since the only other show with mediator characters I can recall is Wedding Crashers. When I teach at writing conferences, I always talk about underutilized characters in the legal system that writers can utilize to get away from the old typecasting. Mediators have great possibilities, so I encourage writers to use them in their stories.

The characterization was pretty good, and that’s what USA is particularly good at. They develop interesting characters with interesting backgrounds and make them funny. Fairly Legal started out so well – the mediator was the victim of an armed robbery and she negotiated a resolution that was a win-win for the robber and store owner. Fantastic!

Then it went utterly off the rails. The mediator is a former lawyer who works for her now-deceased father’s law firm. The wicked stepmother is in charge and clients start abandoning the firm the day of Dad’s funeral. The firm’s in trouble, and one of the firm’s clients is about to walk away from a deal the firm negotiated. Wicked SM wants our mediator to mediate the client back on track. In the meantime, a judge who hates our mediator appoints her to mediate a case he thinks is a waste of time. Okay, so far not so bad.

Here are the top ways this story went into lala land:

1. The firm apparently has the mediator mediating for the firm’s own clients. This particular case didn’t involve a non-client, but if it did, she couldn’t be the mediator. She has a conflict. She can only mediate cases where the firm and she don’t have any dog in the race. If it’s a client, she can’t be the mediator. They didn’t do this wrong yet, but they plan to. Note to writers: STOP IT NOW, BEFORE IT’S TOO LATE!

2. The mediator blackmailed one of the firm’s clients to get her way. Malpractice central. First of all, she went and did her own research. A mediator would never start investigating a case they were mediating. She has to work with the facts and information the parties give her. She can never be an advocate. Second, she can’t blackmail anyone, much less a client. Blackmail is illegal. Mediators have a code of ethics that require them to remain neutral. As a lawyer in a law firm, she also owes a duty of loyalty to the firm’s client. Go directly to the disbarment hearing.

3. The mediator inserted herself into a criminal case that had an impact on her mediation. She met with a criminal defendant without his attorney. She can’t do that because she’s still a lawyer. And she has no business getting involved in a case she isn’t mediating.

4. The judge who appointed her told her that if she didn’t settle the case by the next day she’d be in jail for contempt. That judge would be up on charges so fast his head would spin. A mediator can’t make parties settle and neither can a judge. The mediator should have declined the case (which is her right) and reported him to his judicial qualifications commission.

5. The mediator decides at the beginning of the court-appointed mediation that the case is bogus. She sends all the defendants home without any agreement from the plaintiff to dismiss the case. Until there’s a signed settlement, the mediation isn’t over. Plus, she can’t decide which side is right on her own, whether or not she has her personal beliefs. She shouldn’t be allowed to mediate. She’s incompetent. Not that she’s a bad negotiator. She’s a pretty great one in fact. But she’s a terrible mediator as written.

Here’s how mediation really works:

Mediation is where a neutral third party tries to help the parties reach a settlement. Mediators aren’t able to make decisions in the case, and won’t be the person deciding the case if it goes to trial or arbitration. Their job is to get the parties to reach an agreement so that everyone walks away and says, “I can live with that.”

You may remember Wedding Crashers as a funny movie about two guys who crash weddings. But do you remember how it started? The crashers are family mediators, and the mediation scene is fabulous. It’s funny but realistic. These mediators are creatively trying to get the parties to move off entrenched positions, which is exactly what real mediators do:

Lawyer: “I knew this was a bad idea.”

Mediator 1: “You know what Ken, the bad idea would be to let your client walk out of here today and drag this thing out another year, wasting more time and wasting more money. The only good idea is to let me and John do our job and mediate this thing right here.”

Mediator 2: “You wanna hear the crazy thing? I know it doesn’t feel like it, but we’re making progress. We settled the deal with the cars. Let’s see, that takes us to frequent flyer miles. We’re flying.”

The mediators took an argument and made it turn around. They got the couple to remember some of the good days of their marriage and the case settled. This is a great example of using a realistic scene, adding some humor, and giving the story authenticity. Just because it’s comedy doesn’t mean you don’t have to keep it real.
Mediations can be a fun or serious aspect of your story. They can be a brief interlude or the climax of the story where everything resolves.

Mediator characters will tell the parties that, if everyone is a little unhappy with the settlement, it is probably about right. They are trained in tactics to help the parties reach a consensus. Mediation will usually start with a session where everyone is present. The attorneys if the parties are represented, a party representative if it’s a corporation, the party if it’s an individual, and the insurance adjuster (if there’s insurance), will be present, or sometimes on the phone. The mediator will explain the process and give each side time to explain their side of the dispute and what efforts have been made to settle the matter.

Most mediations then break into “caucuses,” where the mediator will meet with each side in separate rooms.They’ll discuss the upsides and downsides of the case, and relay any settlement offers from the other side. What is discussed in caucus is confidential unless the party relaying the information gives the mediator permission to relay it to the other side.

The mediator will then go back and forth between the parties, relaying information and offers, asking questions, making sure both sides understand the risks of going to trial, and try to reach a settlement. They can’t give legal advice or put pressure on any side, and they can’t prefer one side over the other. They can’t try to bully the parties into a settlement

Mediators have to disclose any conflicts, prior dealings with either side or the attorney, or other potential matters that could affect their impartiality. The parties can object to any mediator, and will usually be asked to agree on one. Sometimes the court or mediation group will appoint one, subject to objection by either side.

The mediator is paid by the hour or on a flat daily rate, and is paid whether or not the case is settled. Most cases that are mediated settle at mediation.

Mediation with a trained, competent mediator may be the best thing that has happened to the justice system in the past century. It has done much to unclog the court systems and move the parties toward amicable resolutions.

If a mediation is successful, the parties walk out with a signed settlement agreement. If unsuccessful, impasse is declared and the case goes on to the next step.

I actually liked Fairly Legal because I enjoyed the characters and found it funny. With a little tweaking, the writers can get it back on track to show what mediation really is and use it to full advantage. Because there’s no judge present, anything can happen at a mediation. The writers should use this to full advantage while still holding true to what mediation is all about. I’ll give the show another chance or two, but if it stays so ridiculously far from what is realistic, I won’t be able to watch it for long.