DISCLAIMER: I am not an attorney and this is not legal advice. This list contains my opinions after 17 years of accepting and rejecting memoir manuscripts as the President & CEO at BookLocker.com. Always check with your attorney for any legal questions or concerns about your book.
Memoirs are perhaps the riskiest type of book to write. Any half-truth, any exaggeration, any snide remark, any salacious assumption about someone, and even something that someone else might find slightly embarrassing can land you in court, and can lead to bankruptcy, even if you win the lawsuit in the end!
If your memoir does any of the things above, here are 12 steps that may help you avoid getting sued:
1. Change your name. That’s right. Write under a pseudonym. I know this sounds obvious but you’d be surprised how many authors refuse to do this, mostly for egotistical reasons. But, simply changing your name is NOT enough to protect you. Not even close! Keep reading the rest of the steps below. (Note: If you insist on publishing your memoir under your real name, and if it contains any of the problem areas mentioned above, think twice. And then, think again. Using your real name in a potentially problematic book just to gain notoriety, or to be able to say you wrote a book, is a very, very bad idea. Push your ego aside and protect yourself and your family from a future lawsuit by using a pseudonym.)
2. Change the names of everyone else in the book, even pets.
3. Change the descriptions (of all) and even the gender (of some) of the folks portrayed in your book.
4. Change all locations.
5. Change any identifying / descriptive info. appearing in the book so that nobody reading that book can identify anybody, any place, or any incident at all in your story. Even if somebody you know reads it, they should NOT know, nor even have a clue, that you wrote it.
6. Don’t tell ANYONE (except your publisher and your lawyer) that you are the author of that book. Promote it only under your pseudonym. I know this is very difficult but all it takes is one person telling one other person that you’re the author, and that person telling someone who you dinged in the book, and kablam! There’s a process server at your door.
Even with all of the advice above, somebody somewhere may still be able to identify someone on your book. Changing names and anonymizing a book won’t protect you 100% from lawsuits. So:
7. Don’t include spiteful, catty remarks that will only incite rage in those you are writing about. (i.e. “My ex husband was a pompous, selfish ass and he was stealing from his parents” or “My boss was a total jerk and he was always looking at women’s boobs” or “The city councilman was a pervert! I’m pretty sure he was a sex addict…”)
8. Do NOT purposely, subtly, and/or subconsciously attempt to humiliate or embarrass the people you’re describing in your book. Ask your attorney to flag any sensitive areas so you can change them. You may subconsciously include something that might identify someone, and anger them. Your attorney should be able to catch these items so you can fix them.
9. Do not use your book to “get even with” anyone, even if you’re doing it anonymously. If you make mistakes in your covert activities, your book may not be as “anonymous” as you think.
10. Be mature and professional. Your book should teach other people a lesson, or tell an educational story. Letting your emotions take control of your memoir writing will lead to mistakes, which can then lead to legal liabilities. You don’t need to call people names, or accuse them of crimes (of which they have NOT YET been convicted), or make assumptions, or reveal secrets they might find embarrassing. Doing all of this cheapens your book, and makes you appear unprofessional and immature.
Note: Even if someone has been convicted of a crime, they can still sue you – and win – if any of the information you presented in your book is untrue, or can’t be easily proven by you. And, if you mention their family in a negative manner, those folks can sue you, too! One woman wrote about being molested by a family member, and wrote about other family members knowing about the abuse, but doing nothing about it. She was a child when all of this happened and would have a very difficult time, decades later, defending herself against lawsuits that might be filed by her family members.
11. Don’t give lawyers free ammunition against you! Remember that people get sued all the time for some really bizarre reasons. Many folks assume all authors and publishers are rich. There is no shortage of slimy lawyers ready and willing to file frivolous lawsuits. Don’t give them a reason to do so. And, definitely don’t give them ammunition IN WRITING (your book!) to beat you in court. Trust me. You’ll regret writing what you did after you’ve spent thousands in legal fees. Even if you end up winning, your chances of recovering those fees are nil to none, especially if your case made it all the way to trial.
You can bet Amber Heard has been regretting writing that op-ed about Johnny Depp. She has been paying her legal team for years – multi millions of dollars. Writing that op-ed was just plain stupid.
12. Using all of the advice above, you might want to consider fictionalizing the entire book. Tell the story, add a fiction disclaimer that includes “loosely based on actual events,” and publish it as a novel. You can still tell a story and/or teach readers valuable lessons through fiction. As with everything else mentioned here, be sure to get your attorney’s blessing!
The three most common responses I receive from authors when I issue these warnings about memoirs are:
1. “But, it’s MY book. It’s MY story! It deserves to be told by ME!”
2. “But…truth is the absolute defense against libel claims!”
3. And, this stunning one: “But, I can’t be sued! It’s all true!”
Sure, you may DESERVE to write your story under your name…but do you DESERVE to get sued for it? Is it worth getting sued by one or more people? Is your vanity making the decisions about your book or is your practical self doing so?
Yes, the truth is a good defense against libel…but it’s not the absolute defense. What if you can’t prove that what you wrote is true? What if it’s a he said/she said situation? What if old letters or any other evidence proving what happened has been lost? What if the person you wrote about convinces other “witnesses” to turn against you? What if someone PAYS someone else you know to lie in court so they’ll win? Yes, these things DO happen!
And, yes, you absolutely CAN be sued, even if everything in your book is 100% true! If a lawyer ever tells you that you “can’t be sued,” find another lawyer! Anybody can file a lawsuit. Anybody can be sued. Nobody is immune from litigation. Will they win? Maybe, maybe not. But, even getting to the point of a lawsuit dismissal can cost you thousands in legal fees, or more! And, who gets paid when that happens? YOUR LAWYER! Possibly the same one who told you that you “can’t be sued.”
Be wise and extremely practical when writing your memoirs. Don’t be egotistical. Don’t be emotional. Emotions can lead to dumb mistakes. A book you’ll be publishing for the masses is NOT the place to settle a score, even if you think you’re doing it anonymously. Put your vanity aside and protect yourself and your family from future bankruptcy. All it takes is one problematic lawsuit to ruin your life. Years and thousands of dollars later, you may wish you’d taken a different path when telling your story.
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