How Not to Get Sued for Your Memoir
Contributor
Written by
Brooke Warner
September 2016
Outlining
Contributor
Written by
Brooke Warner
September 2016
Outlining

Because I host regular free webinars about memoir writing, I’m in contact most months with hundreds of memoir writers. And even though the topics I teach typically have nothing to do with libel or slander or misrepresentation, people’s questions always go there.

Most writers are afraid of what will happen to them if they write their memoir. The consequences of telling our truth ranges from benign (your family will be mad at you) to quite serious (you might be facing a lawsuit). The problem is that most memoirists don’t understand what constitutes a legal breach, and almost everyone is as worried about hurting someone as they are about the idea of getting into trouble legally.

During my sixteen years in book publishing, I’ve received three cease-and-desist letters from lawyers about memoirs, none of which resulted in any further legal action. In the first memoir, the author characterized a conversation with hospital staff at a major urban hospital. The cease-and-desist letter reached us pre-publication because the author had sent a galley copy to the hospital. It wasn’t too late to remove the scene. The second case was similar. The author had been studying with a master teacher, and she’d written about more than that teacher was comfortable with her sharing. Again, this memoirist shared those pages with her teacher prior to publication, and the teacher insisted she remove major chunks of text, which she did. In the third instance, one of my She Writes Press authors, Kelly Kittel, wrote about her family and a doctor involved in a wrongful death suit in her memoir Breathe. She named names, and was on legally solid ground because the things that happened were part of the public record. For those interested in knowing more, she unpacks this story in an essay called “Be Brave and Say Their Names Out Loud” in my forthcoming anthology, The Magic of Memoir.

These experiences have given me context about what is okay and not okay to publish. And while many authors understand they can hire a lawyer to vet their manuscripts, most are just looking for some quick and easy guidelines to ease their worried minds. So here’s what I have along those lines:

1. Change names and identifying details.
If you are worried about hurting someone’s feelings, or putting information into the world about someone you love (or once loved), or someone who has it out for you (or might have it out for you if you were to expose something about them), then you need to change both names and identifying details about that person. If a person can recognize him or herself in your work because of their looks, their profession, how they’re related to you, etc., then you need to find ways to disguise them. Give them a different job, a different gender (if possible), and different city of birth or residence. This isn’t so easy when it comes to our children or our ex-spouses, and sometimes it may be necessary to write under a pseudonym if you are concerned your family will disown (or sue) you, but in my experience this is only necessary in extreme cases, and usually happens because the writer is worried about getting cut out or cut off from their children more than they’re worried about being sued.

2. Show the people you’re writing about what you’ve written.
If you’re worried about an ex-colleague or partner, a co-parent, an old friend, someone you’ve studied under, a coach, or some other person who played a major role in your life and who shows up in your memoir, consider showing them what you’ve written before you go the route of changing identifying details. You can even ask them in advance if it’s okay to write about them in your book and see how they react. Some people are honored to be written about in a memoir, and even appreciate a nuanced portrayal of themselves and their actions. This is obviously not going to work with an abuser who perpetrated a crime against you, but if you have a decent relationship with someone, consider this route, and have them sign a simple waiver agreeing to be in your memoir. You can even ask them if they’d prefer to have their real name published, or if they want to have a pseudonym.

3. Write what happened and edit out what needs to be removed later.
Most writers are worried about the issues of exposing themselves and others way too early in their process. With memoir writing, the biggest gift you can give yourself is space—and there is nothing spacious about worrying about alienating someone you love, or obsessing about how someone in your life is going to react to your work. Write what happened, and worry about changing the details later. Use people’s real names in your first draft. They’re not going to show up at your door with threats just because you put their names on the page. Breathe, and write. And then with the perspective of a complete manuscript, you can consider what needs to be purged.

4. Get clear about what you stand to lose.
Kelly Kittel knew what she stood to lose when she wrote about her family in Breathe. And she did alienate them. But that connection had to be sacrificed for her truth to come forward, and she walked into the publication of her memoir with her eyes wide open. Rather than fret about what may or may not happen, consider what the worst fallout might be, and then ask yourself if you’re ready to face that. In many cases, lawsuits are the least of it. When people say they’re afraid to publish the truth of what happened, they’re typically afraid of exposing secrets, of outing others, of saying what’s not supposed to be said. But there are many cases in which you’re allowed to name names. You’re allowed to name names if what happened is a matter of public record, if you have evidence to back up your claim, or if the person you’re accusing or outing is a public figure. There are countless memoirs in which sexual abuse survivors out their abusers, and this is allowed because these things happened, and the abuser is put in the position of deciding whether to sue the person they abused, knowing full well the crime they’re responsible for perpetrating happened, or just dealing with the fact that their heinous crime came to light in a memoir. Never once has an outed abuser sued a memoirist.

5. Get your manuscript professionally vetted.
In extreme cases, and if you really want to name names and need to make sure you’ll avoid a lawsuit, hire a lawyer. I’ve spoken with some people who are so afraid to write their memoir for fear of what might happen that they never start. A lawyer can talk you through what might happen, and help you get clear about whether any part of your story is off-limits. In the vast majority of cases, aspiring authors package their fear of personal fallout in fear of getting sued. Consider that James Frey didn’t even get sued for lying. He just got a public whipping. Augusten Burroughs’s family tried to sue, but nothing came of it. You don’t hear a lot about memoir cases going to court because they’re that rare.

If you’re afraid of a big fallout, consider whether that fear might be your inner critic at work, making you bad and wrong for exposing someone or something that you’re not “supposed” to share. Going against the grain and exposing yourself and others is the number one scariest experience of memoir writing. You may need to be in dialogue with your critic to ease its mind so you can continue to write your truth. Remember that you are brave and in charge of what you ultimately share or don’t share, and you have time between starting your book and publishing it to make incremental choices and edits along the way.

Let's be friends

The Women Behind She Writes

519 articles
12 articles

Featured Members (7)

123 articles
392 articles
54 articles
60 articles

Featured Groups (7)

Trending Articles

Comments
  • Lee Roberts Publishing

    Hi Brooke, Thanks for this excellent and very important advice as I have begun writing my personal memoir of survival of multiple abuses & perpetrators since childhood so the legal aspects especially have been of tremendous concern. I am in touch with only one sibling of five and would like to maintain that connection. I have written my first rough draft yet even with name changes I still discover I have much to research from the information you shared here. I have journeyed long and my fractured child has experienced a great deal of healing. I am writing this book to share that aspect of my journey. Others need to know they are not alone, there is hope and healing is possible. Thanks so much! 

  • Valerie J. Brooks

    Thanks, Brooke! Always a concern for memoir writers. I had a tip from a lawyer who said, say for example if you're writing about an abuser, that if the abuse took place in private and you wrote about it, it's an invasion of privacy because it's your word against theirs. If, however, the abuse had witnesses (not sure what the witnesses could and could not have observed), then it's not an invasion of privacy, so therefore you can write about the incident. Does anyone else know anything about this? I'll bet there are shades of every legal standing.

    I recommend checking out Helen Sedwick's site and her book. http://helensedwick.com/

    Perhaps the National Writers Union has resources and help with this.

    As I write my memoir, I try to keep in mind why I'm writing the story and as Sonya says, tone does matter. If anyone is writing for revenge, then that person hasn't healed, and a memoir writer should have healed from whatever they've experienced before attempting a memoir.

    Another invaluable resource is http://marionroach.com/. Marion has a "formula" for finding the theme of your memoir for those having trouble narrowing down memoir's focus.

  • Brooke Warner Outlining

    Thanks for this perspective, Cindi. I just ordered Love Warrior. Looking forward to reading that one!

    Dhana, these are the kinds of insidious worries that start to spin us out of control. I doubt Cheryl Strayed is concerned about her health insurance at this point and she wrote about heroin use. I think we have to be careful about spinning out too much and it can be helpful to make a list of worries to see if some of them need to be aired and checked off as ____ fill in the blank: paranoid, silly, overkill. This isn't to make you wrong for your worries, just to say they can really eat at you, and what's the likelihood your insurance carrier is going to read your memoir, unless you get as famous as Cheryl Strayed, and then you can afford the best of the best. :)

  • Kathy Ashby

    It says something about human nature that if a book is a best seller (in the news getting attention and making money) family, friends and guilty parties will get more upset and perhaps sue. Their egos and reputation are at stake and they feel a duty to defend themselves.

  • Dhana Musil Querying

    Such great points Brooke. I have to consider many of the points you write about, but, like you said, its more a worry about emotional outfall than legalities. My partner raise a point the other day, about life insurance. Because I write about drug use in my memoir, maybe my life insurance carrier will refuse to cover me anymore?! That's  only if my memoir becomes widely read of course...

    Sonja Larsen-great point on one dimensional monsters...that aside, I went to your reading at VPL and your book Red Star Tattoo is next up on my to-read list. Can't wait.

  • Charlene Diane Jones

    What a great article, Brooke. Thank you. Your clarity that "You don't hear a lot about memoir cases going to court because they're that rare" really helps me feel on solid ground. 

    Sonja Larsen, to your point that tone matters, thank you. I hadn't really thought about this but it makes so much sense. If characters appear in my memoir as multidimensional it ups the tension, while providing a sense of each one's humanity. And if the narrator, me, appears as flawed also it puts us all in a more level position. Thanks all!

  • Cindi Michael

    Great advice, as always, Brooke. It has been a concern of mine from day one of considering publishing The Sportscaster's Daughter, particularly as my father was famous in certain circles and that the people who would most want to sue me have deep pockets. I attended some excellent presentations by Sheila Levine at several conferences - WRiters Digest - and IWWG - and did get a legal review. But your point - about just write it as a draft - get everything out I think is the most important point about memoir writing. Write to understand first, then edit or re-write to publish. Also, the two big areas of legal concern are invasion of privacy and libel. On the invasion of privacy issue, it's a matter of how detrimental revealing private issues would be for a person - writing about someone doing drugs could cost them a job for example. On this point though, I really wonder how the memoir Love Warrior came to be published! For libel, bottom line is tell the truth! And even if you do all that, the point is to avoid getting sued at all, not only that you can defend yourself.

  • Brooke Warner Outlining

    I think you can, Sonja. The edit button under your comment window. I have one of those—do you?

  • Sonja Larsen

    on a totally unrelated note -- wouldn't it be nice if we could edit our Shewrites comments to fix our typos :) 

  • Nina Angela McKissock

    Purabis.  Great question!

  • Nina Angela McKissock

    My brilliant, tough-as-nails Manhattan copyright attorney said that only the people who are jerks in the book seek revenge. They are almost waving their hand saying, "Hey I'm that asshole! She can't say that!"  I was told to make between 14-16 de-identifiers, but this was too hard. HIPPA regulations are another issue to honor. Just don't seek medical information about someone, then you're safe. In my memoir that featured the end of life experiences of twenty-one of my patients, it took a year for me to find some of the patients family members. Two executors wanted me to use the real name. BTW...those were the hardest chapters to write.

  • Purabi Das

    Hi Brooke, thanks for the clarification. It does help.

  • Brooke Warner Outlining

    @Sonja—thanks for sharing this. Such an important perspective. I've had this experience in working with others, too, that the thing they were most scared of turned out not to be the case and others were grateful for the story coming forward.

  • Brooke Warner Outlining

    @Purabi, changing names and identifying details does not make a memoir fiction. You would put a disclaimer at the front of the book, on the copyright page, that says that names and identifying details have been changed, and it's clear that this is done to protect people and not to change the facts of what happened in your memoir. I hope this helps.

  • Sonja Larsen

    Good advice! When I wrote my memoir Red Star Tattoo about growing up in a cult I worried how those  I wrote about would react. But because I made a commitment to expose myself and my own behaviour as much if not more than the others I wrote about, several ex-members named in the book have written to me and thanked me. Tone matters quite a bit in how people will receive your work. People are more willing to own their mistakes if they aren't portrayed as one-dimentional monsters. 

  • Sherry Joyce

    Excellent article, Brooke.  At one time I had considered writing a memoir about my mother, her life and how she died in a car crash.  Much of it was legal, and eventually solved to everyone's satisfaction, but at the time the accident happened, I would have had a penchant to fight for justice which could have led to lawyers counter-suing me as the author.  So much good information about avoiding a memoir lawsuit.

  • Purabi Das

    Hi Brooke, thanks so much for this post. In between writing a novel I have been thinking of possibly writing my memoir, one of these days. I do have a question. In your first point you say a memoirist can change names and identifying details. Would it not, then, make the memoir fiction writing? Oftentimes, fiction is written with one kernel of true information around which the author weaves a story. Would love to get your insight. Thanks again for the post.

  • Meg Czaszwicz Kinghorn

    Fabulous advice. Forwarding on to my memoir writing friends!

  • Autumn Ashbough

    Great advice on all counts. Thanks for taking the time to post.