How could so many be so wrong?
The author of the Gravity novel, Tess Gerritsen, sued Warner Brothers for breach of a contract she entered into with the studio’s predecessor-in-interest, New Line Cinema. She claimed that she was not properly compensated when they released the movie of the same name, which she claimed was based on her novel. The judge recently dismissed the lawsuit with leave to amend. The author commented on the event on her blog, which in turn was reported by various news outlets, which in turn quickly spread through the “writersphere”, particularly on twitter, e.g.,
As a sometimes writer, this is terrifying. A contract is a contract. http://t.co/YYab6WTCHL
— SJ Paladin (@TriskalJM) February 2, 2015
As it spread, the message seemed to be distilled down to the erroneous conclusion that the lawsuit had been lost and that this was a terrible day for authors. Doom and gloom. In reality, any attorney reading the news would understand that it wasn’t really news at all, but merely the mundane machinations typical of any litigation.
For lay people, let’s be clear about what happened here: The judge dismissed the lawsuit with leave to amend. When a plaintiff files a lawsuit, they must allege facts that state a valid legal claim. A dismissal with leave to amend merely means that there were technical defects in these allegations, such that certain facts, deemed necessary by the court, were omitted. The “leave to amend” means that the plaintiff has an opportunity to go back and correct those defects by filing an amended complaint with different or additional allegations. This is common, particularly in complex cases with complicated facts. A plaintiff might have to amend two or three times to get the allegations sufficient to satisfy the judge. What it doesn’t mean is that the case is over. It doesn’t mean anything at all about the validity of the case or the likelihood of the plaintiff in prevailing. For the writers out there, think of that initial complaint like the first draft of a novel–time for the plaintiff to go edit.
So, how does this get so badly reported? How does this result in widespread misinformation? There are a few factors at work here.
First, Gerritsen shares some fault. Her initial blog post uses imprecise language that suggests the dismissal is more dire than it is, e.g., “the door is not yet entirely closed on my lawsuit.” Interestingly, her blog post ends with her quoting a statement by her attorney, which pretty much matches what I said above–nothing exciting. This is understandable, of course. She is an author, not an attorney.
Second, it is the nature of social media, which does not lend itself to nuance or elaboration. When you only have 140 characters to spare, you can’t do much more than reiterate a headline.
Which leads me to the third, and most distressing, factor: poor reporting. The headline on the Guardian article I linked to above reads, “Judge downs Gravity lawsuit from bestselling author Tess Gerritsen”. That’s just flat-out false. The article is rife with error. And this is a major news outlet, not some random guy with tumblr. Even a cursory conversation with an attorney could have minimized those errors (but perhaps also the number of clicks, natch).
For lay people, when you read an article regarding a lawsuit, keep these three guidelines in mind as they are so often misreported:
1. The filing of a lawsuit says nothing about it’s validity. Anyone can file a lawsuit for anything. All they need is a filing fee and a piece of paper.
2. A denial of a motion to dismiss says nothing about the validity of a case. Getting past the dismissal state means only that the plaintiff was able to allege facts sufficient to state a cause of action. It does not mean they will be able to prove it.
3. As this situation has demonstrated, a dismissal without prejudice says nothing about the validity of a case.
And, of course, if you see a sensational bit of legal reporting while you’re on twitter and you’re uncertain of what it really means … just ask us!