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For Darn Good Writing Ask Erica I WAS SUED FOR LIBEL (This article is available for purchase)
I COULDN’T AFFORD TO BE SUED
Anybody can sue anybody for anything in this country, without incurring any penalty, as I found out when I got sued for libel.
"I hope this isn't unexpected," the apologetic sheriff's deputy said to me when he delivered the summons that bleak December morning. It wasn't unexpected, but somehow I never believed it would actually arrive. I'd never been sued before and wasn't prepared for the sense of dread that washed over me as I read the legalese in that paper. Once upon a time, back in my flower child days, I’d laughed at debts and lawsuits. I owned nothing and so could lose nothing. Thirty years later I wasn't an irresponsible, judgment-proof girl anymore, but a homeowner with modest savings. I could hardly believe that total strangers could take away whatever measly assets I’d painfully managed to amass over the years.
The lawsuit accused me of libel, a ridiculous charge considering the circumstances. My husband and I, an older couple desperate for a child, had recently adopted a baby from One World Adoption, a private adoption agency run by the Kaskys, a father/son duo in Fort Lauderdale, Florida. (Real names are being used here to expose the guilty and because I still refuse to be intimidated.) One World ordinarily charged whatever the traffic would bear for an adoption, but we got a steeply discounted rate since we agreed to adopt a baby born to a birth mother who had abused cocaine. Shortly after we picked up our baby, however, the Kaskys and their social worker accused me of being an unfit parent, and asked us to return the baby, offering us a 9-year-old instead. Since I was hardly a child molester, we racked our brains to figure out what their real motive must be and finally settled on the obvious one--greed. Our daughter became a more valuable commodity the minute she was born healthy, with no sign of drug-related problems. We had no proof, but surmised there might be a couple in the wings willing to pay the agency’s full fee for her. Luckily we’d engaged an adoption lawyer in our own state, New York, before traveling to Florida. After spending a few days in abject terror about possibly losing our baby, she managed to get the Kaskys off our backs. Nevertheless, we had to spend three months being more closely supervised by our local department of social services than many parents accused of child abuse, which was humiliating to say the least.
Although our story had a happy ending–we were vindicated and got to keep our baby–the experience ruined what should have been the happiest days of our lives. I was determined that other hapless adoptive couples shouldn’t be subjected to a similar ordeal. As soon as I had the adoption finalization papers in hand, I shot off a complaint about One World to the government bodies that regulated them, plus the Florida Bar Association. I then posted a warning about them on the America Online Adoption forum.
A few weeks later I got a letter from the Kaskys’ attorney threatening to sue me for libel if I didn’t "prepare a written retraction." Shaken at first, I relaxed when I was reassured by the attorney I consulted, a fellow member of my professional journalists organization, that they were probably just saber-rattling. But when the actual complaint arrived, accusing me of making "untrue," and "defamatory" statements with "actual and constructive malice." I was stunned by how frightened and helpless I felt. All of a sudden I wasn’t a competent, accomplished, capable woman anymore but a vulnerable defendant who had to be saved by someone else–another lawyer–who I couldn’t afford. I questioned my own sanity in going up against lawyers in the first place. Who was I to confront powerful male authority?
I fleetingly considered giving in to their demands for a retraction, but I knew I’d never get a good night’s sleep again if I capitulated. The ghosts of my political activist parents who taught me to do the right thing, even when it was inconvenient or risky, wouldn’t let me rest. I reassured myself that we were the good guys–the ones who’d been jerked around unfairly. I soon found out good guys don’t necessarily win lawsuits.
Friends I confided in were mystified by my panic. "You told the truth didn’t you?" they’d ask. "How can you lose?" I found out what whistle-blowers find out when they go up against big business--that truth and falsehood, right and wrong, is beside the point. The point is who has more money to afford the legal fees–them or you. There was no contest here. The Kaskys made more on one adoption than I made in a year. I was suddenly in the position of having to find and hire a lawyer in a state 1,300 miles away, at fees of at least $250 an hour, or jeopardize everything my husband and I had in the world.
I grasped at a variety of straws. My literary lawyer friend told me some states have what’s called anti-SLAP statutes designed to protect whistle-blowers from being slapped with libel lawsuits. Unfortunately, Florida isn’t one of them. Another friend suggested trying my homeowners’ insurance because some policies cover liability incurred in libel actions. No luck. Mine didn’t.
I still thought there was hope because, since I knew I was telling the truth, I assumed that even if I had to lay out the money for a lawyer, when I’d won the case the Kaskys would have to pay my legal bills. NOT! I found out why there are so many frivolous lawsuits in this country. Anybody can sue anybody for anything without assuming any financial risk. Unlike England, where the loser has to pay the winner’s legal bills, the legal profession here has lobbied strenuously against such legislation.
What finally saved me was being a journalist. I was told about the National Libel Defense Center which gave me names of all the libel lawyers in Florida. I spent a solid week frantically making phone calls. My spirits were buoyed by this wonderful community of public-interest lawyers who sympathized with my plight and seemed to really care more about freedom of speech and righting injustice than piling up the bucks.. One sent me to another until I found Sandy Bohrer, a nationally-known libel attorney who agreed to represent me pro bono. It didn’t hurt that my case piqued the interest of libel lawyers because it involved libel on the internet.
Since then more information has come to light about the Kaskys and One World which severely damages their credibility. It seems they falsified some of our adoption papers, their social worker is unlicensed in Florida, and their former partner is on the run after defrauding adoptive parents. They still haven’t dropped their libel suit, but Sandy isn’t losing sleep over it and neither am I. It’s clear that he’s got them way outclassed.
What does still bother me, however, is that other unfortunate souls, who don’t happen to have access to the kind of network that I do, can wind up in the same position, slapped with libel or other frivolous lawsuits and faced with steep legal bills. This is the reason why lawyers are considered less trustworthy than used car salesmen in this country. Why don’t our legislators address such egregious inequity? Why don’t they care about lawsuits being used to harass and impoverish innocent people like me? Why don’t they adopt the English system and make the losers pay the winners’ legal bills? Maybe because they’re lawyers, that’s why.
(This article is available for purchase)
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