Ask Author Law

What to do if you get sued

January 19, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, IP Law, Intellectual Property, Lawsuit, Defendant

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: A local real estate broker hired me to write some columns under his name for a weekly newspaper. He was supposed to pay me $300 per column, on delivery. He was going to get the byline and own the copyright, but it was a ghostwriting job and he supplied the subject and the expertise, so those terms were acceptable to me. I did one column and delivered it. He paid me $300 and said he liked it. I did two more columns. He paid another $600 and asked me to finish as many as I could so heíd have a stock of columns all ready to go. I finished and delivered another seven columns and sent him an invoice for $2,100. Iím not sure what happened between him and the local paper, but the column didnít appear when he had told me it would. He didnít pay the invoice. I sent a second invoice, which he also ignored. I tried to call his office, but he didnít return my calls. During this period I got several other assignments, so I moved on and didnít follow up further with him. A few weeks went by and then, to my absolute shock, I received a computerized form notice from the municipal court that I was being sued for $1,000 by the broker. I tried to call the broker again, but he still didnít return my calls. Iím totally outraged and have absolutely no intention of paying him any money. He doesnít return my calls. Iím tempted just to throw this notice away. He canít prove anything against me, so why should I let him get away with this? What do you think?

A: I share your outrage, but you canít just ignore this. Itís an absolutely awful feeling to be the defendant in a legal action. Youíre put in a position over which you have very little control. You have to show up on someone elseís timetable and answer to allegations that someone else has made. Itís especially awful when the allegations against you are without basis, as these seem to be. If you are like most of my clients who have been sued, youíre furious, upset, and afraid. This is completely understandable, and I sympathize. But you still need to deal with it.

You didnít identify the state where you live, but it sounds like youíre being sued in a small claims court. The following suggestions are based on that assumption. If you have any reason to believe that the notice youíve received is NOT a small claims summons, you should consult a lawyer promptly. If itís definitely a small claims case, you can defer your decision on whether to get a lawyer until farther along in the process.

Iíve found that defendants who survive the best are the ones who manage to channel their anger productively, detach as much as possible, and prepare for their defense methodically. I know this is easier said than done, but you should try your best to follow a process in which you verify the basics, gather information, then make and follow a plan, while remaining flexible and able to adapt to the various curve balls that may come your way. Youíll do best and youíll feel less helpless if you take a proactive stance, rather than an emotional, reactive one. Hereís where being a writer can be a major advantage. See if you can treat this as a writing project and bring your professional skills to bear. Even if you never write about this experience, a journalistic approach can help you get through it.

The first step is to verify the basics. Small claims courts are state courts, so the rules, procedures and applicable law can vary considerably from jurisdiction to jurisdiction. Itís not unusual for these courts to use a computerized summons served by mail. Thatís the case in New York, where I practice. Examine the notice you received. Make sure itís really from a court. Some collection agencies and lawyers send letters threatening legal action that resemble court documents.

At a minimum, it should give you instructions on when and where you should appear and some idea of what youíre being sued for. Any court dates or deadlines important here. Then you should check with the court to make sure you understand what is expected of you next. Many courts discourage telephone contact or use frustrating voice mail, but you should persevere. Often the best approach is to visit the court in person -- both to confirm the basics on your notice and, perhaps more important, to get a sense of the place and what happens there. If there is a session scheduled before your court date, attend as an observer. Sit up front where you can see and hear whatís going on.