December 22, 2010
Raising the Bar for "Publisher's Staff" Content After Rudovsky? On some really bad decisions made by West and its many and varied consequences for not being "proud" of publishing a "sham" pocket part
As I am sure many recall, in Rudovsky v. West Publishing Corp.(U.S. District Court for the Eastern District of Pennsylvania, No. 09-cv-000727-JF), the authors of Pennsylvania Criminal Procedure -- Law, Commentary and Forms, law profs David Rudovsky (Pennsylvania) and Leonard Sosnov (Widener Law School), sued their publisher, West, claiming that the publication of the December 2008 pocket part to their work was so poorly researched that it harmed their reputations as legal authors and authorities on Pennsylvania criminal law. Since this litigation deserves a place in the Guinness Book of World Records for really bad corporate decision-making (and Guinness is my beverage of choice), let's recap with some commentary the current state of affairs.
"In a case that offers a rare glimpse behind the scenes in the world of legal treatise publishing," Shannon Duffy reported on testimony offered on December 13, 2010, the first day of the jury trial:
At the center of the dispute in Rudovsky v. West Publishing are events in 2008 when the professors say they proposed to completely rewrite the treatise — a third edition — and West refused.
According to the professors, West instead said it wanted to hire them only to write a pocket part and proposed to cut the professors' pay in half — from $5,000 each to $2,500.
When negotiations failed, the professors say they assumed their treatise would no longer be published, or that West would find new authors.
Rudovsky testified Monday that he was "shocked" when he learned that West went forward in December 2008 and published a pocket part that still carried his and Sosnov's names as authors — even though they had done no work and received no pay.
"I was stunned, and when I began to think about it somewhat angry and somewhat humiliated," Rudovsky testified.
He said he worried that anyone who received the pocket part and paid about $50 for it would potentially associate the professors with "a sham product."
Let's add that the law profs were first hired by West in 1988 to write Pennsylvania Criminal Procedure: Law, Commentary and Forms, and worked on annual updates since the first edition was published in 1991. A second edition was published by West in 2001. So in 2008, the authors thought it was time for a new edition. West not only refused but wanted to cut the profs' compensation in half for working on the update. The authors refused. So in its infinite commoditization of legal analysis and commentary wisdom, West turns over the work to its editorial staff.
Let's start counting the bad decisions West made at this point of the story. Invoice-paying law librarians know how West likes to spit out new print volumes of questionable value (except for producing revenue) instead of pocket parts but here are two law profs who think it is time to competely redo their treatise, and West says no. Am I the only invoice-paying law librarian wondering to what extent print volumes are published because the Company's editorial staff is ghost writing them with little or no involvement and/or payment to named authors? Doubt it. Well, we all know some named authors who have become "brands."
Then West tries to cut the authors' compensation for their work in half. OK, business is business. But, am I the only invoice-paying law librarian thinking that "Plan B" -- dump the work on nameless editorial staff, might explain the deteriorating quality of TR Legal titles, particularly for state-specific titles in jurisdications where this Company isn't just a duopolist but borders on being a monopolist? Don't think so.
Back to the story. Now if the editorial staff produced content somewhat resembling if not close to the quality of work Rudovsky and Sosnov produced for annual updates, this behind the scenes glimpse at the author-West relationship might not have been presented to a federal court jury. But we know what can happen when editorial staff is left to produce legal commentary and analysis without author supervision. One illustration:
Although Rudovsky and Sosnov's annual updates routinely included about 150 new cases, [the professors' lawyer] told the jury that the 2008 supplement included only three new cases.
Quoting from Duffy in Trial Opens in Profs' Defamation Case Against West.
Don't know if any law librarians were on the jury, but it didn't take very long for the verdict to be handed down. On December 16, 2010, West was ordered to pay Rudovsky and Sosnov $90,000 each for defamation and $2.5 million each in punitive damages.
Back to bad decisions made by West. Well, besides publishing a piece of [expletive deleted] because we law librarians, unlike the jury, are so used to this because many institutional buyers in this Shed West era are, well, shedding West print, at what point in the litigation did someone think or not think, say or not say, it is time to make this go away by writing a big fat check acceptable to the authors because the bad publicity can do more damage than pursuing corporate interests? Are Eaganites in the executive suite so isolated from reality that the court of public opinion doesn't matter, that their law prof author pool won't care, that the intended audiences of their titles won't notice? When on Dec. 8, 2010, Senior U.S. District Judge John P. Fullam stated in the following order, did no one at TR Legal or its cadre of legal counsel say "whoa"?
It is for the jury to determine whether the intended audience of the pocket part would conclude that plaintiffs authored an inaccurate and out-of-date supplement to the treatise. If they so conclude, then I hold this would tend to damage the plaintiffs as legal authors and authorities on Pennsylvania criminal law and constitute defamation per se.
I doubt I am the only invoicing-paying law librarian thinking some other major legal publishing executives just might be wanting to b-slap the executives in the land of 10,000 invoices for not making all this "go away" after they quit chuckling over this and realize the potential consequences in the legal publishing industry. At the same time, smaller legal publishers trying to survive in the state-specific practitioners market have plenty of material for advertising their wares and can ratchet-up their price should TR Legal try to buy them out.
Note to West. Perhaps the best way to avoid this in the future is to stop asking outside legal experts to author secondary source titles or require they work as ghost writers like "Publisher's Staff" do. Not being a "money maker" as one of TR Legal's attorney told the jury is no excuse for proceeding in this manner and publishing [expletive deleted] in an information factory. Would the following have happened if the authors had not brought this matter to the light of day?
[A] lawyer for West told the eight-member jury that although West was "not proud" of the first version of the update, it quickly cured the problem — first by informing subscribers by letter that the professors did no work on the flawed update, and by issuing a new version of the update four months later, at no cost to subscribers, that included extensive case updates.
Quoting from Duffy's above-linked article.
On the Many and Varied Consequences: Questions buyers of West titles might want to ask. Is this an isolated incident? Are other West authors waiting in the wings? Will Rudovsky result in improving TR Legal's quality control of editorial staff who are ghost writing legal analysis and commentary? Is there so much at stake here that West must appeal?
And rhetorically, perhaps TR Legal's attorneys should have asked the sitting senior judge to recuse himself on the very likely basis that he has been around long enough to recall when West's editorial content was, well, better than what was exhibited in this litigation.
And issues AALL might want to address if our leadership isn't competely, utterly in bed with TR Legal. This litigation speaks volumes about the author-West relationship but it also speaks to TR Legal's publishing practices and the editorial quality of publications we acquire from West. Will we hear a public condemnation from our professional association about any of this? Is the quality of secondary sources acquired by the insitutional buyers we invoice-paying law librarians represent by belonging to AALL important enough for a public statement? Any chance an amicus curiae brief about West's pattern and practice from AALL will be forthcoming if West appeals this jury verdict?
It's on the public record. About the damages awarded to Rudovsky and Sosnov, Louis J. Sirico, Jr., Professor of Law and Director of Legal Writing, Villanova Univ. School of Law, wrote on Legal Skills Prof Blog, "[a] big holiday present!" As an invoice-paying law lbrarian, I, for one, would like to thank Rudovsky and Sosnov for not putting up with TR Legal's shenanigans (and would be happy to pick up the tab for rounds of Guinness should our paths ever cross).
I don't have any opinion about whether the actual and punitive damage awards will stand up but it looks like this "rare glimpse behind the scenes in the world of legal treatise publishing" isn't over. According to The Philadelphia Inquirer:
West issued a statement [after the verdict] saying "there is no basis in fact, law, or equity for this outcome."
"We intend to pursue every available avenue, including motions before the District Court to set aside the verdict, and appeals to the United States Court of Appeals," the statement said.
Two final questions. Was the cost of using Classic Westaw by TR Legal's outside legal counsel waived by their client -- OMG, did they use WestlawNext to get to this dubious milestone in legal publishing history? Am I the only invoice-paying law librarian who is thinking it might be worth the expense of buying one share of TRI stock as the price of admission to TRI's FY-end shareholders meeting?
Hat tip for the excellent coverage provided by Legal Research Plus, Legal Skills Prof Blog and 3 Geeks; implying, of course, that the above consequences and their costs will have to be addressed and paid by TR Legal some way, some how, if the Company wants to silence this matter and AALL wants to publicly ignore it. [JH]
In claiming that little damage occurred to the professors' reputation because the treatise has a small number of readers, West argued that only 50-some users had searched the treatise within Westlaw. I'd like to point out how disingenuous this claim is since West has no idea how many users searched the treatise together with other content within Westlaw Next.
Posted by: Andrea Rasmussen | Dec 22, 2010 6:10:52 AM