To Sarah Palin: 10 reasons why you shouldn't sue Joe McGinniss

A former attorney for The New Yorker tells Sarah Palin why she's better off ignoring Joe McGinniss and his unauthorized Palin bio.

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    Advice to Sarah Palin: The book critics will condemn Joe McGinniss's "The Rogue" for you – litigation will only waste your time.
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I wouldn’t mind having a beer and a caribou-burger with that Sarah Palin.

If Governor Palin would share a table with me, before I’d ask her about 2016 and 2020, here’s what I would say to her about 2011: Go rogue, but not to court. Don't bother suing Joe McGinniss.

And here are 10 good reasons why you shouldn't waste your time:

1. For a few more weeks, probably no more, Joe McGinniss’s book “The Rogue: Searching for the Real Sarah Palin” will make the rounds of some news-and-views shows; and the book’s most titillating lines may hang on as fodder for a few late-night comics, for just a few more late nights. Why rekindle and fuel inflammatory “conversations” by filing a libel lawsuit – a public proceeding that would engrave the alleged “wishful fantasies of disturbed individuals” into the public record, forever?

2. How many of these “real story” books defy publishing’s “mortality” tables and continue to be featured in bookstores struggling to maintain volume? Are cash-strapped public libraries likely to make the book a priority purchase?

3. Is the book likely to win literary awards? public-service awards? tributes for its contributions to scholarship?

4. Is there any chance that the book will be optioned for a major motion picture, with a cast of AAA-movie stars who are destined to be scripted and directed to Oscar-winning performances that will surely enshrine the film in the Academy’s pantheon of cinematic greats?

5. Before filing a lawsuit, get a sense of the reviews that the book garners. Is the book being praised and recommended? Look especially at the reviews published in newspapers and magazines and websites that have not been favorable to you. If these reviews are tepid – or if the reviewers express qualms about the writing and the reporting – doesn’t that lack of enthusiasm provide you with some vindication, of a sort? Isn’t that kind of judgment to be savored? Aren’t such critical dismissals more immediate, and thus conceivably more significant, than any judgment that might be realized after years of protracted litigation?

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6. Understandably, and rightly (for the most part) media defendants resist discovery. They are not at all receptive to “requests” for all notes, internal memoranda, galley proofs, page proofs, tape recordings, transcripts of tape recordings, e-mails – any and all “memorializations” of interviews and conversations; fact-checking. Assuming damning “evidence” of McGinniss’s actual malice exists (ever existed, still exists), would it be worth months and months of effort to pursue such “evidence”? Assuming “evidence” of knowing falsehoods and reckless disregard of truth can somehow be obtained, wouldn’t such a crusade take a toll on your children?

7. In such litigation, the other side will persist in its “requests” for “discovery” – for document production; for depositions – withering interrogations of those who knew you and worked with you back when; questions designed and posed to create embarrassment; to give rise to intimations that you would rather not have intimated. Would you want to expose friends and former colleagues to such questioning? Isn’t it conceivable that detractors might be emboldened to become “sources” – seeing opportunity to be vindictive under the protection of defense lawyering?

8. The lawyer who has been quoted in the press threatening to sue on your behalf for a “series of lies and rumors” may well be an Alaska “super lawyer.” And, if I am not mistaken, he is a name partner in the Fairbanks law firm best known for its personal injury defense work in medical malpractice cases and products liability cases, and thus may have a keen sense of how personal injury claims are waged. And, cunningly, he may file in a court in Alaska, which would give you home-field advantage. However, there will be any number of media organizations that will feel compelled to rally to the defense table, even though these media organizations may be less than comfortable with McGinniss’s reporting and fact-checking. Might it be more astute to wage your claims, if at all, on the op-ed pages of the very publications that champion freedom of the press and the vibrant airing of views no matter how controversial?

9. As your lawyer knows better than most attorneys, libel lawsuits, like other kinds of personal injury lawsuits, have to survive motions to dismiss and motions for summary judgment. One side or the other will usually take appeals, so that the actual presentation of evidence and testimony may not come about (if at all) for years. Don’t you have better things to do?

10. Given your access to the media, along with your ability to parry and repel criticism and innuendo, wouldn’t your own well-aimed salvos and barbs be more effective – and winning – than anything that might be said in pages and pages of legal pleadings? Can a judge’s ruling or a jury’s verdict, ten years from now, count for more than a few zingers you can deftly deliver in the coming days?

Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1996. He teaches Media Law and Ethics at Quinnipiac University’s Graduate School of Communications.

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