In a case that offers a rare glimpse behind the scenes in the world of legal treatise publishing, a federal court jury began hearing testimony Monday in a defamation suit brought by two law professors against West Publishing.
Professors David Rudovsky of the University of Pennsylvania Law School and Leonard Sosnov of Widener School of Law claim that West harmed their reputations when it falsely identified them as the authors of a poorly researched treatise update.
The pair say they had worked on updates to the treatise for years, but refused when West wanted to cut their pay. West’s response, they claim, was to publish a "sham" update that still carried the professors’ names but included almost no case updates.
But a lawyer for West told the eight-member jury that although West was "not proud" of the first version of the update, it quickly cured the problem — first by informing subscribers by letter that the professors did no work on the flawed update, and by issuing a new version of the update four months later, at no cost to subscribers, that included extensive case updates.
According to the suit, the two professors were first hired by West in 1988 to write Pennsylvania Criminal Procedure: Law, Commentary and Forms , and ever since have worked on annual updates, referred to as "pocket parts."
At the center of the dispute in Rudovsky v. West Publishing are events in 2008 when the professors say they proposed to completely rewrite the treatise — a third edition — and West refused.
According to the professors, West instead said it wanted to hire them only to write a pocket part and proposed to cut the professors’ pay in half — from $5,000 each to $2,500.
When negotiations failed, the professors say they assumed their treatise would no longer be published, or that West would find new authors.
Rudovsky testified Monday that he was "shocked" when he learned that West went forward in December 2008 and published a pocket part that still carried his and Sosnov’s names as authors — even though they had done no work and received no pay.
"I was stunned, and when I began to think about it somewhat angry and somewhat humiliated," Rudovsky testified.
He said he worried that anyone who received the pocket part and paid about $50 for it would potentially associate the professors with "a sham product."
In his opening statement, the professors’ lawyer, Richard L. Bazelon of Bazelon Less & Feldman, told the jury that the 2008 supplement was a "sham" that offered almost nothing new to subscribers and that users of the book would mistakenly connect the poor quality to Rudovsky and Sosnov.
Although Rudovsky and Sosnov’s annual updates routinely included about 150 new cases, Bazelon told the jury that the 2008 supplement included only three new cases.
West’s lawyer, James F. Rittinger of Satterlee Stephens Burke & Burke in New York, told the jury that the Pennsylvania criminal procedure treatise was never a money maker. Its revenue was about $17,000, he said, and the professors weren’t happy with the $10,000 in pay they shared.
But Rittinger told the jury that the professors had failed to make any mention of their contract, which explicitly says that West has the right to publish an update without changing the names of the original authors, even if the first authors played no part in the latest round of research.
Rittinger also predicted that the professors will be unable to show that they have suffered any economic damages or reputational harm.
"They cannot bring in one person who will say they thought less of them," Rittinger said. "They have not lost one cent."
But Bazelon told the jury that he will be asking them to find the plaintiffs suffered "defamation per se," a finding that would allow the jury to presume damages.
Senior U.S. District Judge John P. Fullam, who is presiding over the trial, issued a recent two-page order in the case that clarified the judge’s views on both the law of defamation per se and the jury’s task in the trial.
"It is for the jury to determine whether the intended audience of the pocket part would conclude that plaintiffs authored an inaccurate and out-of-date supplement to the treatise," Fullam wrote. "If they so conclude, then I hold this would tend to damage the plaintiffs as legal authors and authorities on Pennsylvania criminal law and constitute defamation per se."
Rudovsky is expected to continue his testimony today. •