I sat through a defamation trial. Here’s what I learned.

by Alison Motluk

Like many journalists, I live in fear of being sued. I pray that being accurate and fair and unmalicious will be enough. Just in case it isn’t, I make sure never to indemnify any publication I write for. Still, what I learned from observing a defamation trial in Toronto this spring shook me up a little. Here’s what you should know.

You just can’t predict who will sue

I thought I had a pretty good nose for what kind of story I might be sued for, and by what kind of entity, but now I’m not so sure. My new policy is that I shouldn’t try to predict. Even if you go to extraordinary lengths to be accurate, even if the person suing you has already been taken to court elsewhere and didn’t show up, even if your lawyers have gone through the copy with a magnifying glass, don’t be cocky. It’s a crapshoot. You might be sued.

It might take years to be resolved

Cases may come to trial many years after the original story was published. In this instance, the trial was held more than seven years after the story was printed, and about four years after the journalist had moved on to work elsewhere.

Preparing for and defending a case can take many weeks of your unpaid time

The trial itself took more than three calendar weeks. Luckily for the journalist in this case, his new employer understood the importance of defending journalism. For a full-time freelancer like me, however, it would be three-plus weeks of lost income. In addition to that, many, many more weeks go into the preparation of the defence. As the writer, you know the story best, so you have to guide and assist your lawyers as they prepare to defend. That’s more lost income.

A case that could ruin you may go unnoticed

Most days I was the only person watching the proceedings. No other journalists seemed to be aware this was taking place, even people from the defending publication. Being sued looks lonely.

Publication bans make it hard to get the word out about our risks

A publication ban was placed on parts of the proceedings. Even when a ban is only partial, as in this case, it can hinder reporting on what might be an important trial. When the issue of a publication ban was raised, I was the only person, apart from the defendants, to object. (To my surprise, the judge allowed me to speak on the record against it. Not that it changed things.)

Your notes will become evidence in the trial

If you are sued, everything you did in the course of reporting and writing your story will come under scrutiny. So if you are the type to scribble rude quips in the margins, you might want to change your ways from here on in. But do keep detailed notes. It’s even more important than you realize to document everything — conversations with editors, decisions to do something or not do it, interactions with sources.

Your behaviour will also become evidence

Watching the court mull over journalistic practice was both fascinating and horrifying. Was enough research done to reach the conclusions made in the article? Was four days enough time to allow for comment? Was it dishonest to tell the subject he had only four days when in fact publication was always going to be more than four days away? Long story short: people outside the profession may find what you do ridiculous, deceitful, and fraudulent — even if you follow professional guidelines.

Trials can be long

A murder trial can wrap in a few days, but somehow this defamation trial took more than three weeks. In addition to being scheduled long, lawyers can get sick, judges can have outside commitments and counsel can ask for extra time to prepare — all of which happened in this case. Again, this might be unpaid time, and you might be forced to be away from your home, kids, dog, spouse for the duration.

Even if you win, you will lose

You expect to be slapped with a big bill if you lose a case. But, apparently, even if you win, you could end up paying out. This case has not been decided yet, but I’m told that only about 2/3 of costs are typically awarded. In a lengthy case like this one, your share could amount to the value of small Toronto semi. I used to fight to simply not have to indemnify my publication. But now I realize I need to fight to be explicitly indemnified by them.

Alas, the alternative is worse

We really are the last bulwark. And if we don’t fight the good fight, I don’t suppose anyone will.

Alison Motluk is a Toronto-based freelance journalist. You can find her on Twitter at @AlisonMotluk