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While my son was toddling, I was teetering — trying to balance life with litigation. When the litigation finally expired, I resuscitated. I wonder if I could have done something to end the case sooner. On June 20, 1991, the U.S. Supreme Court ruled against the legal positions I’d been advocating since 1984 for my employer, The New Yorker magazine, in a hotly contested libel case. The vote was nine to zip. The Court ruled that Freudian scholar Jeffrey Masson’s libel suit against The New Yorker, Janet Malcolm and her book publisher should probably go to trial. As a result, I spent four more years being an adversary-at-law. I spent a lot more time away from my son because our national tendency is to resort to courts. As editorial counsel for The New Yorker, I was a Masson v. Malcolm intimate from the beginning. I took the phone call from the lawyer Masson consulted after reading part one of Malcolm’s two-part “Annals of Scholarship: Trouble in the Archives,” which appeared in the Dec. 5, 1983, issue of the magazine. When Masson retained a second lawyer to file a libel suit on his behalf in November 1984, I oversaw the collection, collation and duplication of files for the defense lawyers in San Francisco. When Masson amended his complaint to focus on quotations, I was the first to listen to the Masson-Malcolm tapes (recordings made by the author during her interviews) and the first to prepare a transcript of those recordings. Over the years, I spent hours and hours on all kinds of legal memoranda, briefs, motions, interrogatories, requests for production, answers, affidavits, still more memoranda of law and points of authority and still more motions. Hours and hours away from my son. Masson’s lawsuit did raise some very interesting legal and ethical issues concerning the transcribing of interview notes and tapes, and the relating and “translating” of an interview subject’s recollections. The lawsuit prompted vigorous discussions and debates in classrooms and newsrooms, at conferences and seminars, on op-ed pages and in law journals and journalism reviews. In a way, the lawsuit had what might be thought of as a “useful life.” Economists and accountants can estimate the value of an asset or enterprise, can project a useful life and forecast diminishing returns, schedule depreciation and recommend a writeoff. I wonder how an economist and an accountant would have appraised Masson’s lawsuit through its various stages of growth, maturity and decline. I know what it cost me as a father. THE ROAD NOT TAKEN I wonder what might have happened if Masson and Malcolm had been encouraged to take their dispute “outside” –outside the courtroom, that is. What if they had been given the opportunity to go at each other one-on-one, in, say, the pages of the New York Review of Books or England’s Times Literary Supplement or, indeed, in the pages of The New Yorker, where all the hullabaloo started in the first place? In a one-on-one duel of disparagements, Masson and Malcolm could have lobbed insinuations and counters without the restraint and garble of legalese. They could have cut through the argot of “substantial truth,” “rational interpretation of ambiguous conversations,” “false light” and “incremental harm.” Instead of citing cases, they could have gone on about journalism practices and ethics; about the use of quotes and the risk of misquotation; about the propriety (or impropriety) of piping or fusing comments made in interviews conducted at different times and places; about reading back quotes; about fault, malice and the infliction of emotional distress; and about the self-infliction of reputation wounds. The aggregation of salvos, explanations, refutations and rebuttals would have been circulated to an audience far larger than the audience for appellate court briefs and oral arguments. And the best part: I would have been a spectator, a noncombatant. The exchanges would have made for great reading — better than all the awful, lawful pages and pages of legal stuff that I was helping to create. I wish I had actively promoted the idea and had been able to convince The New Yorker and Malcolm’s book publisher to sponsor and fund such airings. I’m inclined to believe that an exchange of accusations, explanations and exculpations would provide most libel plaintiffs with what they need. Masson might have found that such an approach would have provided him more real satisfaction than anything that came out of the appellate decisions that went his way — or the two trials (1993 and 1994) that didn’t. Looking back at those battles, I engage in a bit of psyche probing: Which engagements provide real satisfaction? How many fathers and mothers are deprived (or deprive themselves) of parental satisfaction as they insist that a court provide satisfaction? If I had had the stones to promote such an exchange, and if I had been able to convince the parties to duel differently, I would have been able to see a whole lot more of my son as he turned 3, 4, 5 and then 6. Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1994. He now teaches writing at Quinnipiac University School of Law in Hamden, Conn.

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