[UPDATE: Law Librarian Blog and 3 Geeks and a Law Blog both have detailed coverage of the case and what it means for the publishing industry, and Jonathan Turley has background on the Campbell punitive damages case.]
[UPDATE II: As The Legal Intelligencer reported, and as I predicted below, Judge Fullam cut the punitive damages verdict, holding “the constitutional limit in this case should be set at $110,000 for each plaintiff. When combined with the compensatory damages, this would result in a recovery of $200,000 for each plaintiff.” That’s roughly a 1:1 ratio of compensatory:punitive damages, which is low under recent precedent, even in non-personal injury cases.]
One of the big secrets about the legal world is that a huge portion of the work is performed by the newly-minted lawyers with little or no experience in anything, much less experience in the fields they are called upon to practice.
The Supreme Court (along with most federal and state courts) hires almost exclusively lawyers who have just graduated from law school. Expensive “BigLaw” corporate law firms churn through new graduates by the thousands, inflicting them on clients at $150–250 an hour to flail about through legal database searches and to endlessly review clients’ e-mails and documents to determine if they are arguably privileged.
Then there is the legal publishing industry. When all of these new lawyers are looking for answers in fields they barely understand, much less can practice in, they turn to textbooks, treatises, hornbooks, and guides that are supposed to give them all the answers or, at least, point them in the right direction. (Everyone expects hornbooks to be like a map, but, really, they’re meant more to be a compass.) Some of these guides are fantastic, written by seasoned professionals who explain, in simple but not too simple terms, what the relevant issues are and where a practitioner should go to answer further questions.
And then there is what happened to the Pennsylvania Criminal Procedure: Law, Commentary and Forms written by David Rudovsky (whose civil rights practice I’ve discussed here) of the University of Pennsylvania Law School and Leonard Sosnov of Widener Law School and published by West, one of the more prominent legal publishers. As The Legal Intelligencer recounted:
[T]he professors claimed that, because of a pay dispute, they stopped working on the project and therefore did none of the work on the December 2008 supplement, or “pocket part,” to their book…
West’s response, they claimed, was to publish a “sham” update that still carried the professors’ names, but included almost no case updates. …
But the supplement published in December 2008, Bazelon said, added just three new cases and failed to take note of any of the cases that had been reversed in the past year by the state Supreme Court.
The evidence, Bazelon said, showed that West assigned the task of writing an update to a woman who had graduated from law school one year before and then gave her just one week to do the work and never reviewed it before publication.
The law professors were understandably unhappy with their names being attached to a worthless supplement which not only failed to provide any new information, but which misled readers into thinking that the information contained in the textbook was more current than it actually was.
So they sued, as I previously described in How To Write Your Brief So That The Judge Will Hate You. As Rebecca Tushnet noted, the professors’ creative false advertising claims were dismissed before trial, leaving just the defamation.
Last week, a jury awarded them each $90,000 in compensatory damages and $2.5 million in punitive damages, for a total of $5.18 million. Not bad for a book that only made $17,000 in revenue.
Two issues jump out at me.
First, their punitive damages award has a math problem. As I noted in The Third Circuit’s 1:1 Punitive Damages Ruling: The Lingering Complications of State Farm v. Campbell, the Supreme Court has already indicated that it expects a “single-digit” ratio between compensatory damages and punitive damages in cases that do not involve physical injury, and the highest that the Third Circuit has approved to my knowledge is a one-to-seven ratio (in the CGB Occupational Therapy v. RAJ Health Services case cited in my post), which would limit the professors to $630,000 in punitive damages each.
Second, the trial court found that the publication was defamation per se because it “ascribes to another conduct or a condition that would adversely affect his fitness for the proper conduct of his lawful business.” Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 343 (3d Cir. Pa. 2005); see also Restatement (Second) of Torts § 573 (1977). It’s an important finding, since Plaintiffs then need only prove “general damages,” i.e., proof that one’s reputation was actually affected by the slander, or that he suffered personal humiliation, or both. Although I frankly agree with the law professors here (as you would expect, considering that I represent plaintiffs defamation cases), there is a good chance that the Third Circuit might not.
Nonetheless, the case is an important reminder to the legal publishing industry: if you are going to make her books the way you make sausage, just make sure the nominal authors of the books are on board with it.