How Can I Avoid Lawsuits When Writing Memoir?

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This month’s Ask the Editor is sponsored by Book Pipeline. The Book Pipeline Workshop—editors reviewing manuscripts, queries, and synopses. Fiction and nonfiction accepted. All material is considered for circulation to lit agents—multiple Book Pipeline authors have signed with reps and gotten published since 2020! Submit now.

Question

After more editing of my manuscript, I hope to self-publish my book based on my journey with bipolar II disorder. I have included people who came into and out of my life prior to my diagnosis and treatment for this mental illness. Short of changing the names, what actions should I apply to ensure that my truth, as written, will not bring about lawsuits against me?

—Legal Eagle Needed

Answer

Dear Needing a Legal Eagle,

I’m so glad you asked this question! If the 2022 Johnny Depp and Amber Heard defamation trial taught us anything, it’s that you don’t have to name names to find yourself in legal trouble.

While getting sued for something in your memoir is exceptionally rare, it can happen. The risks are highest for authors with big platforms, especially if they’re writing about well-known public figures or powerful institutions. But even lesser-known authors can experience legal issues if they don’t perform their due diligence while writing and revising their books.

Of the things you can get sued for, libel is often the biggest potential problem for writers. Libel consists of false written statements, presented as fact, that do damage to the reputation of the person you’re writing about. If what you write is objectively true, the person who is suing is unlikely to win their case—but that doesn’t mean they won’t sue. Also, if you reveal embarrassing but true information about an individual who is not a public figure, you may get in trouble for invading privacy. (What defines a public versus private figure is complicated and may require legal consultation.)

Your question suggests you have some niggling concerns about how the people in your memoir might receive your story. In the land of storytelling, truth is far more malleable than you might realize—especially when writing early drafts. The goal of memoir isn’t to capture the capital T “Truth” of what happened; it’s to mine your experience for meaning that serves your readers and the story. To accomplish this goal, and have the best chance of staving off legal entanglements, there are two areas you’ll want to focus on: (1) researching your facts and (2) understanding your motives.

Researching the facts is about keeping your side of the street clean. You may need to interview witnesses, search through primary source material, read legal documents or medical records, and Google everything you can. Don’t assume your memory is correct; entertain the possibility that your memory may be faulty or incomplete. Look for evidence to support that things happened the way you remember them. If you can’t find evidence, or your memory is hazy, it’s best to admit this right in the story itself. E.g., “I don’t remember exactly how events unfolded that day, but…”

After you’ve checked your facts, consider how you’re portraying your characters. Dig deep and ask yourself if revenge fantasies or vendettas have impacted the way you’ve written about the people populating your book. Only angels are exempt from vendetta fantasies. Mere mortals are bound to our human experiences, which at times are filled with anger. Beta readers and writing group members can help you check for unfairness or imbalances in your character development. You can also do some perspective shifting by writing the same scene from your antagonist’s point of view. I know that’s a tall order, but it will help you better understand what happened, and write with compassion.

If someone has behaved so badly this feels impossible, and you’re certain they belong in your book, double check your research, then work with beta readers to ensure what you’ve written is accurate, balanced, and serves your story.

After you’ve completed your research and have a nearly final, polished draft, then you can think about whether to change names or descriptions. Changing names and identifying details, or creating composite characters, can be helpful if a situation belongs in your story but outing someone isn’t essential. Two memoirs that handle badly behaving characters with grace include Stephanie Foo’s What My Bones Know and Everything Is Perfect by Kate Nason. In Stephanie’s book, her insensitive boss is never identified, while Kate renamed a well-known public figure in her memoir. Yet we can make some educated guesses as to who they’re referring to, which means changing names isn’t a fool-proof shield you can rely on. If someone is in fact easily identified in your memoir, they can still sue successfully for libel or invasion of privacy even if you’ve changed their name and a few details.

If your characters aren’t public figures or affiliated with powerful institutions—and they’re not litigious—revising well and changing identifying features might be all you need to do to stave off a lawsuit. But, if chances for litigation are high, legal vetting might be in order. To legally vet a manuscript, you’ll hire a lawyer who will review your book, and to keep costs in line, it’s best to only submit chapters or passages of concern. A lawyer might suggest items for removal or help you rephrase things in ways that lower your overall risk. Costs vary from the hundreds to thousands of dollars. The Authors Guild has great resources around legal vetting, including this free webinar on vetting legal risk.

Checking all these boxes will certainly lower your risk, but there’s no guarantee you won’t be sued. That’s because we can’t always predict who will be upset. For example, Mary Karr feared her mother would have a meltdown when she read The Liar’s Club, but she loved it. Yet others have told me stories about characters they’d written glowingly about who were miffed by a single word used to describe them.

This might seem like a lot to consider, especially if your plan is to self-publish, but our stories are worth getting right. These suggestions will not only help you create the very best version of your memoir, they’ll help you promote your book with greater confidence, because you’ll know that everything belongs, has been written with care, and keeps your side of the street clean as you create your art.

I wish you the absolute best on your writing journey.

Warmly,

Lisa Cooper Ellison

This month’s Ask the Editor is sponsored by Book Pipeline. The Book Pipeline Workshop—editors reviewing manuscripts, queries, and synopses. Fiction and nonfiction accepted. All material is considered for circulation to lit agents—multiple Book Pipeline authors have signed with reps and gotten published since 2020! Submit now.

Lisa Cooper Ellison

Lisa Cooper Ellison is an author, speaker, trauma-informed writing coach, and the host of the Writing Your Resilience podcast. She’s spent the last two decades helping clients and students turn difficult experiences into art, and teaches courses in memoir, the psychology of writing, and the book proposal. Winner of the 2022 HippoCamp edition of the Lancaster Story Slam, her essays and stories have appeared on Risk! and in the New York Times, HuffPost, Hippocampus Literary Magazine, and Kenyon Review Online, among others.