April 4, 2011
The Rudovsky Case and Quality Control
The case of Rudovsky v. West Publishing Corporation reached a form of resolution last Wednesday. Past substantive coverage of the case on this blog is here. David Rudovsky and Leonard Sosnov authored Pennsylvania Criminal Procedure as part of the Pennsylvania state practice series. They were paid $5,000 each on supplements and declined to prepare a Supplement to the publication for 2009 when West tried to negotiate a fee of $2,500 each. West's offer is a bit understandable in the context that the publication only brought in $17,000 per year. This was established in one of the depositions. The case also give some insight into West's editorial practices regarding publications and their marketing. More on that below.
Given the the refusal of the authors to take West up on its reduced offer, West contemplated cancelling the title but found itself committed to delivering a supplement to meet revenue targets. The Attorney Editor assigned to the publication (and many others simultaneously) wrote the text to the supplement. Information in the depositions and the memorandum filed by the judge suggest that the prepared text was a cursory update to Pennsylvania criminal procedural law at best, adding three new cases and failing to note that some of the previously cited cases had been reversed by the appellate courts. The pocket part was issued under the names of the authors, both respected faculty members and experts in Pennsylvania criminal law. They filed an action for defamation and holding them in a false light. The jury awarded each plaintiff $90,000 each and punitive damages in the amount of $2.5 million each.
West filed a motion for judgment as a matter of law. The court denied the motion. It found the damage award a bit high but declined to disturb it as it was within the range of acceptable. As for the punitive damages, the court noted the jury had to find actual malice before it could award them. The court noted the relative deep pockets of West and said that may have influenced the award amount. It then reduced the punitive damages to a total of $110,000 each giving each plaintiff a total of $200,000, or $400,000 for the total award. The memorandum opinion is on Westlaw at 2011 WL 1155159. The accompanying order is at 2011 WL 1155285. I note these and not another source as both presentations contain the words "This decision was reviewed by West editorial staff and not assigned editorial enhancements." Indeed.
The order also gives West some options. Paragraph 2 offers a choice: if West accepts the remittitur to the verdict, then the motion for a new trial will be denied; if not, then a motion for a new trial will be granted. What to do? Pay the lawyers more money and take chances with another jury, accept and cut losses, or make an offer of settlement. All this for for what would have been $5,000 an author and a better written supplement. And West could have dropped the publication in any event.
The biggest revelation out of this mess, for me at least, is that there seem to be more people in the chain of command concerned with marketing and revenue streams than there are with content accuracy and completeness. The Attorney Editor, as those who shepherd publications are called, put the pocket part together as quickly as possible because it was overdue. No outside contractor was available, in this case, to create the text. It went straight to manufacturing without any additional oversight.
Jason Wilson, who writes the Rethinc.k blog, raises a really important issue that comes from this case:
What is important about these excerpts [from the depositions, -ed.](and in my opinion, I don’t believe these systems or approaches to be unique to West) is that they get to an underlying issue not being asked of lawyers and legal researchers generally, that is, what do you, the consumer, consider to be a quality update to a legal treatise? It’s rare to find lawyers talking about such things, and law librarians had a perfect opportunity to do so at the recent AALL Vendor Colloquium, but instead limited their focus to pricing and subscription models, vendor communications, digital v. print, etc. Honestly, what difference does all of that make if you don’t know what standards vendors use to measure the underlying quality of the product?
A great question, Jason. Let me offer an opinion on why there are no real answers. And let me say that I am speaking strictly as an academic librarian. I would think firms and firm librarians have a greater stake in the quality of publications for obvious reasons, and may have different views. Still, in academics, librarians typically don't use the books they buy. Collection development is based on subjects, cost, and reputation of the authors and publishers (the whole point of the Rudovsky case), at least in general, driven by faculty requests, and the nature of the curriculum. By typical, I mean before academic law librarians faced substantial budget cuts because of the current recession.
The "new normal" in academic law libraries has required directors and collection development managers to actively review the quality of print materials they have had on subscription and standing orders. This has lead to what is now known as the "Shed West Era." In this context and based on revised collection development policies, print cancellations are widespread and have been for the last couple years. Harvard Law School Library, for example issued the largest print cancellation order in West's history, opting instead for online access which in the legal academy is provided at substantially discounted rates. Even under these circumstances, however, badly written publications merely shift online. The fact is, we just don't know. There is no significant feedback from the attorneys, the law students, and researchers who are the actual users.
I'm surprised no one has ever put together a web site called Rate My Legal Treatises where someone who actually uses the books can comment on a book's editorial value. If anyone does this, at least give me credit for the idea. At most, we notice whether the folios are sewn in the right order and orientation. Those limited times we in academics do perform research (as for faculty, as an example), we use multiple sources and techniques. One doesn't work, we move on to the next. The deficiencies of one source doesn't necessarily rise to the level of a collection development decision. Maybe it should, whether budgets are tight or not.
I just want to point out that all West had to do to avoid this litigation was to have changed the authorship on the original pocket part from the listed authors to "Prepared by the Publisher's Staff," or words to that effect. The quality of the pocket part, however, would still be our problem as consumers. I remember visting West in the late eighties, right after the company moved to Eagan, back in the Dwight Opperman days. I remember the tour of the plant and editorial offices and being told how each case in a reporter was reviewed and read line by line out loud between two editors to make sure no errors would creep into the text. I have a feeling that level of quality control is long gone at most major legal publishers for most legal texts. I'd be happy to be proven wrong on this one.
The depositions of the West editors are here (Download Rudovsky - Deposition - Kruk), here (Download Rudovsky - Deposition - Mullen), and here (Download Rudovsky - Deposition - Redzic). They can be tedious at times, but they do offer a glimpse into how legal bibliographic sausage is made. The court's memorandum denying judgement as a matter of law and remittitur is here (Download Rudovsky-order on motion). It's also available with a host of other documents in the case from Justia. Jason Wilson's post on the judge's order is here, and his post on editorial standards is here with excerpts from the depositions. I wonder if counsel for the defendant used WestlawNext? I understand it's supposed to be a cost saver. Oh, and the Classic Westlaw display of the case brought up this related gem:
ALR 1. Punitive Damages: Relationship to Defendant's Wealth as Factor in Determining Propriety of Award
I have to say, Westlaw's automated scan of the opinion knows how to link them. Score one for the computers. [MG]
Of course directors and collection development managers should be actively reviewing the quality of print materials. This is a tough, tedious job. I wonder if quality control protocols would have caught the mistakes or the oversight to note the reversals on appeal in the cited case had the authors themselves not done so. It is more likely such mistakes would be caught because of the active dialogue between library professionals by way of such electronic forums as this Law Librarian Blog. But, as noted by Jason Wilson in Rethinc.k Blog, quality control only becomes substantive when the actually users of the print and electronic materials – lawyers, law students, and other legal researchers – contribute. Unfortunately, right now, their feelings about the quality of the updates to legal materials are not being captured.
Posted by: CL | Apr 7, 2011 7:35:47 PM