Let's Run it Past Legal

Having maligned the legal profession last week, I hope to return to grace with some high praise for one branch of the species.
It may be hyperbolic to refer to the legal counsels of publishing companies as "grey eminences," a term one usually assigns to the shadowy power brokers who manipulate the controls of vast corporate or political networks. But it would be no exaggeration to state that tremendous influence resides in the hands of the attorneys who counsel publishing executives on the legal aspects of their companies' operations. Few significant corporate decisions are made without clearance by a publisher's lawyers, and no book is published that has not somehow been affected by procedures originating in the firm's legal department. To the degree that the men and women of those departments are seldom colorful, their eminence may indeed be depicted as grey. But it must never be underestimated, because the power they wield over the fate of your book is both total and final. However headstrong the chief operating officer of a publishing company may be, he or she will override a house counsel's advice at the utmost peril.

Owing to the enormous number of legal affairs confronting every publisher, attorneys must be engaged to advise the firms' executives. Small houses with little money to spare for lawyers may hire a small firm or sole practitioner on an hourly or flat-fee basis to perform specific tasks such as drawing up incorporation papers, writing a lawyer-letter, or rendering an opinion about a specific situation. Larger publishers may engage an outside law firm for an annual retainer, which is adjusted if the time spent by the lawyers exceeds a prearranged ceiling. Fees and expenses of litigation are always a matter of separate arrangement, as they absorb extraordinary amounts of billable time.

The largest publishing companies maintain a salaried in-house legal counsel or staff to advise them on the countless matters arising out of the daily operation of the company. Or they may share the legal staff of the conglomerate of which the publisher is one component. In any event, some of the matters dealt with by the in-house counsel may be as minute as a single, but potentially actionable, provocative word in a manuscript; other matters may be as immense and complex as a corporate merger or a major litigation. The publisher's legal department is also in charge of contracts: not just publishing contracts, but those pertaining to everything from the office lease to a bank loan to a distribution deal to the acquisition of another publisher. If there is a notable increase in the time it takes for your book contract to be processed, as authors commonly assert these days, it may be attributable to the workload of the lawyer at the top.

Although routine contracts or deals for sums below a certain figure may never end up on their desks, most of them run very tight ships and insist on reviewing everything contractual that is generated in their bailiwicks. And there is scarcely a corner of the publishing company that does not in some fashion fall in a general counsel's bailiwick. Indeed, his or her office is sometimes a convenient dumping ground for many of those corporate problems that executives cannot pigeonhole and thus cannot deal with. "You should see some of the stuff I have to handle," one attorney told me. But he handles it decisively. "A general counsel is often a general troubleshooter for the corporation, and we solve lots of problems that are very far afield from our job description. You name it, they'll run it past Legal."

Here are some items that might appear on a typical day's agenda of the house counsel for a large publisher.

* The directors are concerned that the company is vulnerable to a hostile takeover. There is a great deal of stock on the market and its price is temptingly low. A raider might be interested in adding a publishing jewel to his conglomerate crown. A decision must be reached about buying back the stock and funding the maneuver.

* A news magazine has managed to get hold of a set of proofs of a major autobiography that the publisher is bringing out six months from now. Under the guise of a "news story" the magazine has summarized the juiciest passages of the book. The potential for selling first serial rights has been damaged if not ruined. The general counsel is contemplating litigation and is reviewing the legal precedents.

* This publisher is also at the other end of a possible lawsuit. An author has threatened litigation because, he claims, the publisher rejected his book in bad faith. He'd been hired by the publisher to write a biography of a glamorous starlet. But just as he turned in the manuscript it was learned that she'd been arrested for cocaine possession. The publisher rejected the book on the grounds that it was simply a poor job and wants back the large advance paid on signing the contract. The author not only doesn't want to repay the initial advance, but wants to compel the publisher to pay the money due on acceptance, too.

* A delegation of literary agents is scheduled for a meeting to discuss improvements in the publisher's royalty reporting system. The firm's management is loath to spend the large sum of money it will cost to revamp the computerized royalty statements for thousands of books. At the same time, management is anxious not to give offense to the agents and to the large number of authors they collectively represent. The house counsel must determine a negotiating position before going into that meeting.

There are several high stacks of paper on his desk and coffee table requiring attention. One pile contains routine contracts and contract requisitions calling for his signature or initials. Another contains affidavits, depositions, briefs, and other court papers for him to review. Still another has corporate minutes and other company business for his comments, approval, or other action. And in yet another are some items demanding urgent attention: a subpoena to which a response must be made by Friday; a summary of the terms sought by an agent for a major book on which there is an auction closing at five this afternoon; and a memo from an editor containing the distressing news that a reader has pointed out a dozen passages in a book the company recently published that seem to have been lifted almost verbatim from a book published ten years ago.

* A staff attorney has completed a line-by-line reading of a recently delivered manuscript, a biography of the late great Senator Clemenceau Osterdonk. Osterdonk was allegedly a pederast, a sadomasochist, a drunk, a cokehead, an arsonist, an influence peddler, an ax murderer, and an embezzler with dandruff, halitosis, and athlete's foot - your typical politician, in other words. Although the laws of the land plainly state that one cannot libel a dead person, the senator's estate and its Rambo-type lawyer are ferociously protective of the hallowed reputation of their late lamented, and have threatened to nuke our publisher if it prints Word One of this scurrilous hatchet job. The book will, the lawyer contends, irreparably damage the family's business interests which are dependent on maintaining an image of the deceased as the closest thing to an angel that is to be found in this imperfect world.

The book was impeccably researched by a journalist of unassailable pedigree, then reviewed by his own attorney, who happens to be the world's authority on libel. Our publisher is not afraid to publish this insightful and entertaining book, but neither does it want to provoke a lawsuit it cannot successfully defend. So the publisher's counsel has a ton of questions, modifications, and requests for documentation to take up with the author, and on the corner of his desk rests this thousand page manuscript to which yellow Post-its are affixed. On each of these mini-memos a question has been raised, and there are so many sticking out of the manuscript it looks like a forsythia in bloom. The author must either alter the text to satisfy the attorney's requests, answer his questions in a point-by-point letter of response, or furnish sufficient documentation to demonstrate beyond reasonable doubt that the items in question rest upon a concrete foundation of fact. Even after the author has complied with all of the lawyer's requests, our house counsel will comb the manuscript again and pick a few dozen more nits before declaring it judgment-proof and fit for public consumption.

It's worthwhile for us to tarry over this function of our in-house lawyer. Every "flag" fluttering along the margins of that manuscript represents a fear fluttering in the heart of any responsible attorney. If the threatened lawsuit does materialize, it might take only one poor choice of phrase, one unsupported allegation, one overenthusiastic innuendo, one unattributable quotation to pave the way for a judgment against the publisher. Old Rambo will be poised to pounce with claws and fangs bared, you may be certain. And not just Rambo, but the attorneys for anybody else mentioned in the book who may feel a victim of defamation, libel, or invasion of privacy.

The fact that the publisher holds a substantial insurance policy indemnifying it against adverse judgments in those areas is of no comfort to our attorney. In the first place, the policy calls for a sizable deductible, somewhere between $100,000 and $500,000, an unrecoverable expense that will make a painful dent in the publisher's profits. For another thing, if the insurance company believes that the publisher was negligent in its responsibility for purging the manuscript of assailable allegations, it may give the company a very hard time and may even cancel its insurance. "No publisher can afford to take that kind of hit," I was told by another attorney. Nor is it of great comfort that the publisher's contract with the author entitles it to recover some or all of its litigation costs and damages from authors' royalties. Rarely is there sufficient royalty revenue to balance the cost of an adverse judgment.

Our house counsel will therefore be forgiven if the queries he has raised in his review of the Osterdonk biography seem picayune. Let's look over his shoulder at a few of them:

Page 15. How do we know O. abused his half-sister when she was four months old? And what, precisely, do you mean by "abused"?
Page 26. Can you document that Uncle Floristan turned O. on to the kicks of Blue Nun administered intravenously?
Page 36. Can you support the innuendo that O.'s German shepherd was "a lot more than his best friend"?
Page 75. Were there any witnesses to O.'s "uncontrollable urge" to flagellate the family chauffeur?
Page 106. Re your statement that O. "bribed his way in one door of the Senate and bribed his way out the other door." Was anyone actually standing at the doors taking bribes? Names?
Page 140. Any documentation to verify that O. and Hermann Goering were "considerably more than nodding acquaintances"?
Page 141. Same question for Joseph Stalin.
Page 142. Same question for Al Capone.
Page 155. For my own enlightenment, can you explicitly describe the sexual contortion alluded to in the second paragraph?
Page 202. Did anyone actually observe O. picking his nose at the luncheon with President Eisenhower?
Page 261. Was O. actually divorced when he started his affair with Mister Ed?

Many such queries are exasperating for an author, particularly in cases where "everybody knows" that the subject of his biography slept with this or that person for years or beat his wife on a regular basis. If all you have to go by is a photo in a movie magazine of the subject escorting his alleged mistress to the Academy Awards ceremonies, however, or if not a single soul can be located who actually witnessed the subject striking his wife (or is willing to testify to that effect), you may be required by a prudent lawyer to fudge your language or throw the dubious passages out entirely.

Your publisher's general counsel does have a degree of discretion about some of the statements made in your book. If, for instance, reference to an affair has been made in half a dozen earlier biographies and the persons alluded to have never contested the references, the attorney may see fit to let your allegation pass, even though it does not rest on hard primary documentation. If he is a literary as well as a legal type, he may be reluctant to water a book down excessively because an overly "lawyered" book festooned with "allegeds" can be a ponderous bore. His recommendations may be challenged by publishing executives who feel he is being excessively cautious.

You the author have few options if your publisher insists on legal changes. Most publishing contracts permit a publisher to declare a manuscript unacceptable if the author fails to comply with requests to modify a manuscript to satisfy legal objections. In such cases the author must refund the advance paid on signing the contract, exactly as if he had turned in a book that was editorially unacceptable. The author may then seek a publisher that doesn't have quite so many compunctions.

I would think twice about doing that, though. For one thing, the same objections raised by the original publisher will undoubtedly be raised by others. And, more importantly, your publisher's attorney seeks to protect you as well as his company. You may find the legal vetting of your book upsetting at first, but after you cool down you will probably be grateful to have this eagle-eyed grey eminence in your corner.

- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.