Brooke Warner and I have taught hundreds of students in our memoir workshops and classes, and presented memoir topics at dozens of conferences. In every single course we teach, a writer will invariably raise her hand, looking a bit pale and scared, and say: “I can’t write my story because I’m afraid of being sued.” Other writers can’t get the image of angry ex-partners or friends or coworkers out of their minds. If you write what really happened, can these aggrieved people sue you?
Fear of being sued can become part of the worst inner-critic voices and paralyze you—but you don’t need to lose your momentum because of this fear. Can someone sue you? Yes, but the bar is much higher than you think, and your opportunity to rectify the fallout of writing your story is months, even years, away.
Literary attorneys can vet your manuscript and let you know if you are vulnerable to a lawsuit—when you are ready to publish. Your first requirement is to free yourself to . . . write!
This is what we tell our students: The first draft of your story—the beginning, the early drafts, will not see publication. The first draft is for you—and it’s for you to sort out your story, what you need to say, and how you’ll say it. The job of the first draft is give you space to write! You need to claim that space and time and put publication fantasies and worries aside.
We understand where the fear of fallout like this comes from. Writing a memoir is a brave act, and it exposes very personal and private feelings, actions, and decisions. Students have told us that they visualize their parents or friends or even dead relatives freaking out as they read their story. It’s a nightmare image, and it stops the writing.
But none of this is real, and it’s important to create a protective bubble around yourself and your work, and pledge to not show your work to anyone but your trusted writing group and your editor or coach. Watch out for that temptation to just “show a little bit.” The motivation to share with family prematurely often comes from the wish to be seen, to be accepted. Validated. But this is dangerous to your creative process.
You might be thinking, “But if they can just understand me and give me their blessing, I can keep writing.”
Sometimes. But more often, that blessing doesn’t come. Families, relationships, the past are complicated and often others may not see events as we do. Everyone has their own view, and they might try to discourage you or guide you to write their story instead of your own.
Write your story in a protected space. Give yourself room to explore your life through your own point of view, through your own eyes.
Later, once your book is written as it happened, as your memory dictates the events as they were or would have been, THEN you can change names, identifying details, and more. An attorney can help with this, or you can follow best practices here, which involve changing all identifying characteristics, including where a person is from, the kind of work they do or did, etc.
When it comes time for publication, if you are still in touch with the people who are characters in your book (and if you have a good enough relationship with them), you can ask them if they would prefer anonymity, or for you to use their real name. I was surprised when my first love gave me permission to use his real name. On the other hand, I had family members who never spoke to me again because I dared write anything about them at all.
Most writers who are afraid of being sued are afraid of the anger people in their lives will feel toward them for writing what happened. That said, there have been times when we’ve cautioned our students around how they characterize people in their past. If you’re writing something that could defame a person (like outing someone as a pedophile, for instance, if they have not been legally charged), you need to consult a lawyer. If you’re writing about a company or a business or an organization and you write negative things about them, you’ll also want to get your manuscript vetted. But again—all that can come later in the process.
It’s important to realize that people we’re writing about feel exposed and vulnerable, too, and many memoirs are about abuse and trauma with the ensuing complicated dynamics. People may be estranged or still angry. You need to decide whether you’ll write your truth as you see it, even if others object. Or do you pause and see if there might be a negotiated path for the relationship or a compromise along the way. These are tough decisions, and very common ones.
Finding a way forward despite your fears may be a daily practice. Also remind yourself as you need to that no one can do anything to you until the book is published. You have time to work through your legitimate fears and make edits as needed. Quiet the chorus of voices in your head in your early drafts. This is your story, not to be highjacked by the people who might have wronged you in the past.
For Brooke’s take on this topic, check out: https://brookewarner.com/not-get-sued-memoir/
We hope you’ll join us to hear Jonathan Kirsch teach on the topic of How to Overcome the Fear of Getting Sued on Oct 18 (part of our COURAGE TO WRITE FEARLESSLY series). Jonathan is a well-known and generous literary lawyer who will walk you through the ins and outs of what you should take into consideration when you’re writing about others, and dispel some of the fears you might have about writing about others, too. It’s a treat to be able to hear from a true expert on this subject—and finally get the facts about what’s what when it comes to what details you should change, what to be mindful of, and what actually qualifies as slander and defamation. Join us to find out more!
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