How to Take Legal Action Against False Memoirs

Four Parts:Gathering EvidenceWriting a Cease and Desist LetterFiling a LawsuitWinning the Lawsuit

No one likes to be lied about, and reading a false memoir that contains lies about you can be upsetting. Taking legal action (e.g., libel, defamation, false light, public disclosure) against the author can be a risky and difficult proposition. If you do not have a strong case, you could get kicked out of court and even be required to pay the defendant's legal fees and damages through anti-SLAPP motions and SLAPPback actions. If you are a public figure, it could be even more difficult to win a lawsuit as you will have to prove maliciousness on the part of the author. However, if you have a strong case, gather evidence, write a cease and desist letter, and file a lawsuit.

Part 1
Gathering Evidence

  1. Image titled Take Legal Action Against False Memoirs Step 1
    Read the memoir. Before taking legal action, you need a good understanding of what is in the memoir. It isn’t necessarily illegal for someone to show you in a negative light or to express hateful opinions about you.
    • If the memoir has not yet been published, then try to get a copy. You could contact the author or the publisher.
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    Highlight the information that is false. Go through the memoir carefully and use a highlighter to highlight any false information. Pay particular attention to false information about you. In order to take legal action, you need to claim that you were personally injured by the false information.
    • Look closely for any statement accusing you of having committed a crime or having a dangerous disease.[1] These statements can be considered “libel per se,” which means you don’t have to show that they actually injured you. The fact that these lies are so offensive is proof enough of injury.
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    Get proof the memoir is false. Evidence that the memoir is actually false will be critical for your lawsuit. Your own memories are some proof—sit down and write out your memories of the incident described in the memoir. You should also look for other proof:
    • Ask witnesses to sign affidavits. Other people might be able to testify that the statements in the memoir are false. They could create affidavits stating that fact.
    • Get newspaper clippings about the incident. If the subject of the memoir was reported in the media, then find other media descriptions of the event.
    • Find relevant government records. The memoir might describe events that led to a lawsuit. You should find legal documents, like trial testimony or deposition testimony, in which the author described the incident in ways that differs from the memoir.
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    Document how you have been injured. You need to have been injured by a false memoir in order to bring legal action. Presumably, you could claim you believed the memoir was true and was tricked out of the money you spent buying it. However, you would only be entitled to a refund of the purchase price. Instead, to bring a legal action, you need more substantial injuries:
    • You lost a job because of the false statements.[2] Collect statements from your employer that you were fired because of the information in the memoir.
    • You were otherwise financially hurt. If you run a business, then clients might have cancelled contracts with you. Get communications where the client explains that the false information in the memoir is the reason why.
    • You have suffered emotional distress. You can also get compensated for emotional harms. To prove emotional harms, you can have friends or family members testify about the changes in your mental state. You could also have a counselor or therapist testify.
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    Meet with an attorney. Only a qualified attorney can advise you about what legal action to take and what additional proof you will need. Schedule a consultation with an attorney and show him or her the false statements and proof of your injury.
    • You can find a qualified attorney by contacting your local or state bar association and asking for a referral.[3]
    • Once you have the name of someone, call them up and schedule a consultation.
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    Don’t wait. Each state has a “statute of limitations,” which is the deadline for bringing a lawsuit. If you take too long to sue, then your lawsuit will be dismissed no matter how solid your evidence. As soon as you become aware of the false memoir, you should begin gathering evidence and meet with an attorney.
    • In some states, such as California, you generally have only one year from the date of publication to sue for libel.[4]

Part 2
Writing a Cease and Desist Letter

  1. Image titled Take Legal Action Against False Memoirs Step 7
    Format a letter. You want to come across as professional, so you should format the letter like a standard business letter. Also give the letter a title like “Demand to Cease and Desist” and center it.[5]
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    Identify the false information. Briefly state that you are writing because you have read the memoir and want to tell the author it contains false information. You can also quote the portions of the memoir that are false.
    • Be sure to explain why the statements are false.[6] For example, you could say, “My memories of that incident are completely different. After being arrested, I was released by the police within two hours and was never charged. I’ve included a newspaper clipping from November 2005 in which the police chief reports that I had been cleared of any suspected wrongdoing.”
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    Describe how you have been harmed. Let the author know how the false memoir has affected your job and personal relationships.[7] You can sue for any mental anguish or loss of reputation, so be sure to let the author know this information. It could help persuade him or her to pull the book from the marketplace or remove the offending material before publication.
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    Ask the author to remove the false information. Make an explicit request for what you want. You probably want the author to remove the false information about you. If the manuscript hasn’t been published, then this is possible.
    • Even if the author doesn’t remove the information, he or she might put a statement at the beginning of the book warning readers that the memoir represents the author's own memories, which might be different from other people’s.
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    Threaten to sue. In order to emphasize that the author should remove the material, you should threaten to pursue further legal action. You don’t have to sound mean, but you can state that you are talking to an attorney and considering next steps.
    • Give the author a deadline.[8] If the book is self-published, then you might want to give the author only a month to make changes.
    • However, if the book was published by a publisher, then it is probably not easy to make swift changes. Nevertheless, you should give the author a deadline for contacting you to discuss next steps.
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    Mail the letter. Send it to both the author and the publisher. The publisher has lawyers who will take your threats seriously even if the author blows them off. Mail the letter certified mail, return receipt requested so that you know it has been received.[9]
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    Negotiate with the author. Once the author receives your letter, his or her attorney (or the publisher’s attorney) might respond with a letter, or they might contact you by phone. You can always propose negotiation. The purpose of negotiation is to get some sort of compensation but to avoid trial.
    • You can propose negotiation by calling the attorney and stating you are willing to negotiate. The author doesn’t have to agree, but you should ask.
    • You would probably benefit from the help of a lawyer if you intend to negotiate a settlement. You would be at a disadvantage if the author has a lawyer but you don’t.

Part 3
Filing a Lawsuit

  1. 1
    Assess the strength of your case. Before you file a lawsuit, make sure your case is strong enough to avoid or defend against an anti-SLAPP (strategic lawsuit against public participation) motion and a SLAPPback action. Anti-SLAPP motions and SLAPPback actions exist in many states to help protect free speech rights. For example, in California, a defendant in a lawsuit can file an anti-SLAPP motion to strike your complaint, have the lawsuit thrown out of court, and award attorneys' fees if there is evidence the lawsuit is frivolous or meant to chill free speech. In addition, the defendant can file their own SLAPPback action for malicious prosecution and request damages once the underlying lawsuit has been dismissed.[10]
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    Format a legal complaint. A “complaint” is a legal pleading that starts a lawsuit. If you want to sue, then you need to draft a legal complaint and file it with the court. You can begin by opening a blank word processing document and setting the font to a legible size and style (such as Arial or Times New Roman 14 point).[11]
    • Some courts have printed “fill in the blank” complaint forms you could use.[12] These make filing a complaint easy. Contact the court clerk for the county where the defendant lives and ask if there is a blank form you could use.
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    Explain the facts of the dispute. You need to give the judge some idea of the factual dispute, so you should identify the manuscript, the author, and yourself. Also explain how you and the author knew each other and how you found the manuscript. If you aren’t 100% sure of a fact, then you can preface the fact by stating, “According to information and belief, ….”
    • Also quote the false statements word for word.[13] Don’t paraphrase.
    • You have to number each paragraph in your complaint. Make sure each numbered paragraph isn’t too large. You can look at a complaint online to see how people write their factual background.[14]
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    Identify your causes of action. After the factual background, identify your causes of action. A “cause of action” is a legal theory that explains how the defendant injured you. You should always use a subject heading, e.g., “First Cause of Action—Libel Per se,” “Second Cause of Action—False Light.”[15] There are several legal causes of action you could sue for:
    • Libel. Libel is a form of defamation, and consists of a false statement that is published and which injures you. The false statement is “published” when it is read by at least one person, so the memoir doesn’t have to be released to the wider public in order to qualify as libel.[16]
    • False light. False light consists of published information that portrays you in a misleading manner, which would be highly offensive or embarrassing to an ordinary person.[17] For example, someone might state you were arrested by the police for rape but neglect to say that the police cleared you.
    • Public disclosure of private facts. The false memoir might also contain truthful information about you which is nevertheless highly embarrassing and not newsworthy. If so, then you could also sue for public disclosure of private facts.[18]
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    Allege sufficient facts for each cause of action. For each cause of action, go through the elements and allege sufficient facts that a judge could find you proved the element. To find out what you need to allege, search for your state’s jury instructions, which you can find online.
    • For example, search “your state” and “false light.”[19]
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    Ask the court for relief. At the end of the complaint, you need to ask the judge to do something. Generally, you will ask for money compensation, which is called “damages.” You can pick a number or you can simply ask for “compensatory damages according to proof.”[20]
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    Insert a conclusion. You can conclude by repeating what you want the judge to do and then include a signature line underneath the words “Respectfully submitted.” Also include the date.
    • In some states, you may have to “verify” the complaint, which means you need to include a statement above the signature line state that you are signing under penalty of perjury.
    • A sample verification statement could read: “I am the Plaintiff in the above-styled action. I have read the complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters alleged upon information and belief. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed in Boulder, Colorado.”[21]
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    File the complaint. Once you have finished the complaint, sign it and then make several copies. You should take your copies and the original to the court clerk and ask to file.
    • You will probably have to pay a filing fee. The amount will differ depending on the court. Call ahead of time to find out the amount and acceptable methods of payment.
    • If you can’t afford the fee, then ask for a fee waiver form. This form will ask for information about your monthly income and expenses.[22]
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    Give the author notice of the lawsuit. After filing the complaint, you need to inform the author that you have sued them. You can send them a copy of the complaint and a “summons,” which you can get from the court clerk.[23]
    • Generally, you will need someone 18 or older, who is not a party to the lawsuit, to make hand delivery for you. This person could be a private process server (which you can find in the phone book) or the sheriff, who you can pay a small fee to make delivery in many counties.

Part 4
Winning the Lawsuit

  1. 1
    Read the defendant's response. The defendant will usually respond to your lawsuit by filing an answer with the court. An answer will contain all the defendant's defenses as well as a response (an admission or denial) to each of your allegations. This document will be served on you once it is filed with the court. Read through the document with your lawyer to get an idea of how the defendant plans to defend the case.
    • In these types of lawsuits, the defendant will likely file an anti-SLAPP motion in addition to their answer. Specifically, this motion asks the court to strike any complaint that arises from activity exercising free speech rights. If the court agrees, it will dismiss your complaint and award attorneys fees to the defendant.[24]
  2. 2
    Respond to the defendant's anti-SLAPP motion. To successfully defend against an anti-SLAPP motion and keep your case in court, file a responsive motion arguing why your case does not involve the exercise of free speech rights. Specifically, you will need to argue that free speech does not include speech that is false and potentially malicious.
    • In addition, if you believe the anti-SLAPP motion is frivolous, you can ask the court to award you attorneys' fees for having to defend against it. The court may also impose sanctions against the defendant and their attorney if it is found that the motion was made improperly.[25]
    • If the court agrees with the defendant and dismisses your case, the defendant may follow up by filing a SLAPPback action (i.e., a lawsuit for malicious prosecution). SLAPPback actions are a way for defendants to recover damages, on top of attorneys' fees, from you for filing an improper lawsuit they had to defend.[26] Damages in SLAPPback actions are based on stress, family strain, financial distress, and professional setbacks.[27]
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    Participate in Formal Discovery. Litigation will really get started during a process called discovery, in which you will have the opportunity to exchange information about the case with the defendant. You will be able to collect facts, get witness statements, find out what the other side is going to say at trial, and determine how strong your case is. In order to successfully take part in discovery, you will use the following tools:[28]
    • Depositions, which are in-person interviews with witnesses and parties. The answers are given under oath and can be used in court.
    • Interrogatories, which are written questions posed to witnesses and parties. The answers are given under oath and can be used in court.
    • Requests for documents, which allow you to ask the defendant for documents you would not otherwise have access to. For example, you might ask for phone records, transcripts, text messages, and emails.
    • Requests for admissions, which are written statements posed to the defendant. The defendant will have to read each statement and admit or deny it. This process helps narrow the focus of litigation.
  4. 4
    Defeat a Motion for Summary Judgment. As soon as discovery concludes, the defendant will likely ask the court to end the litigation and rule in their favor. In order to succeed, the defendant will have to prove there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. In other words, the judge will have to be persuaded that, even if every factual assumption was made in your favor, you would still lose the case.
    • You can defend against this motion by filing your own responsive motion. To be successful, you will need to provide the court with evidence and affidavits showing that factual disputes do exist and that they need to be settled at trial.[29]
    • If you are facing an anti-SLAPP lawsuit, you may need to file your own motion for summary judgment.
  5. 5
    Attempt to settle. If litigation continues, consider settling with the defendant. Trials can be incredibly time-consuming and costly endeavors. Settling is a great way to find relief while avoiding the burden of trial. Start by reaching out to the defendant, through your attorney, informally. Sit down and discuss the issues and how they can be resolved.
    • If informal discussions fail, ask to involve a mediator. During mediation, a neutral third party will sit with both parties in order to find common ground and come up with unique solutions to your dispute. The mediator will not inject their own opinions and will not take sides.
    • As a last resort, you can also try arbitration. During arbitration, a judge-like third party will hear both sides and draft an opinion. The arbitrator will take sides and opine about the case.
  6. 6
    Attend final pretrial hearings. Before trial begins, you and the defendant will sit down with the judge to discuss the trial and set a schedule. This is your opportunity to tell the judge exactly what you are going to present at trial. If you fail to mention something during this conference, you might not be able to talk about it during the trial.[30] Therefore, it is important to be incredibly open and honest during this (and any) hearing.
  7. 7
    Go to trial. At trial you and the defendant will present evidence and testimony to the judge and/or jury. Each party will have an opportunity to present their own case. While the other party is presenting, you will have the opportunity to cross-examine witnesses in order to poke holes in their case. While you are presenting, the defendant will have the same opportunity. Once the trial is complete, the judge or jury will make a determination about who won.
    • If you win at trial, you may receive damages and or an injunction. However, if you lose, you will get nothing. If you believe the judge made a legal error (as opposed to a factual error) during trial, you may be able to appeal to a higher court. To file an appeal, you and your lawyer will have to draft an appellate brief and submit it to the appropriate court. This all must be done within a tight deadline (usually between 30 and 60 days).[31]

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