From Esquire:
When I set out to write my first book, I wanted to write a book that examined the very nature of facts and how we turn them into stories. To do this, I knew, I would have to get every fact that was verifiable correct. The more you want to ask the big, shifty questions, the more your foundation must be rock solid.
My book, The Third Rainbow Girl: The Long Life of a Double Murder in Appalachia, concerns the deaths of two people who have many living family members, the incarceration of a living man, and a protracted emotional and social trauma of enormous meaning to a great many real and living people in a region with enormous (rightful) distrust of media and journalists. I’d done my best to get the facts correct as I wrote, but I had thousands of pages of archival documents, photos, trial transcripts, and newspaper clippings, as well as hours of interviews. The text had been through too many revisions, both large and sentence-level, for me to count. In quiet moments, I felt the anxiety of getting something wrong grip my stomach. I could hurt someone, open myself up to lawsuits, or just make a reader lose confidence in everything I had to say. Getting my book fact checked was not optional.
Fact checking is a comprehensive process in which, according to the definitive book on the subject, a trained checker does the following: “Read for accuracy”; “Research the facts”; “Assess sources: people, newspapers and magazines, books, the Internet, etc”; “Check quotations”; and “Look out for and avoid plagiarism.” Though I had worked as a fact checker in two small newsrooms, did I trust myself to do the exhaustive and detailed work of checking my own nonfiction book? I did not.
From reading up on the subject and talking to friends who had published books of nonfiction, I knew that I would be responsible for hiring and paying a freelance fact checker myself. This is the norm, not the exception; in almost all book contracts, it is the writer’s legal responsibility, not the publisher’s, to deliver a factually accurate text.
As a result, most nonfiction books are not fact checked; if they are, it is at the author’s expense. Publishers have said for years that it would be cost-prohibitive for them to provide fact checking for every nonfiction book; they tend to speak publicly about a book’s facts only if a book includes errors that lead to a public scandal and threaten their bottom line. Recent controversies over books containing factual errors by Jill Abramson, Naomi Wolf, and, further back, James Frey, come to mind.
Editors who acquire nonfiction books and work closely with authors subscribe to ideas of factual accuracy, but are usually not trained journalists, meaning that they might be unfamiliar with the fundamentals of reporting and fact checking (there are some exceptions to this norm, including recently named publisher of Simon & Schuster and former New York Times writer Dana Canedy). Despite the common sense idea that books are the longer and more permanent version of magazine articles, there is an informal division of church and state between the worlds of book publishing and magazine journalism. The latter is subjected to rigorous fact checking, while the former is not.
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A spokesperson for Hachette Book Group, one of the “Big Five” publishing houses and the publisher of my book, shared this statement with me: “We do have procedures in place to ensure that certain nonfiction books and some fiction books are vetted for libel and other legal issues. Relevant facts may be reviewed during the vetting process as necessary.” But ultimately, the spokesperson emphasized, “The responsibility for the accuracy of the text does rest on the author; we do rely on their expertise or research for accuracy.” (Inquiries to Penguin Random House, HarperCollins, Simon & Schuster, and Macmillan went unanswered).
Yet readers and some editors often mistakenly believe that the fact checking of nonfiction books happens somewhere in the typical copyediting process, and in the case of more news-heavy or potentially controversial books, the legal process. But this is not so. These processes may catch contradictions of date and season, name misspellings, or, depending on the copyeditor, glaring errors in research, but they are fundamentally designed to make sure that the book is readable and won’t open the publisher up to lawsuits—not to ensure rigorous accuracy.
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Hachette Books, an imprint of Hachette Book Group, bought my book in October 2017. They paid me $50,000 in the first of three installments constituting an advance against royalties. That first payment netted to around $29,000 after agent commission and taxes. This money was supposed to cover the cost of the time it would take me to write the book, as well as all additional research and reporting—to say nothing of the years of research and reporting conducted on my own dime before the book’s sale. I spent about $2,500 on the trial transcript of the case spotlighted in my book, and about $2,000 on travel and reporting. I have no children or adult dependents, and I am in reasonably good health without major medical bills, so I was able to live relatively frugally on the remainder during the period between sale and “delivery” of the completed manuscript to my editor.
My contract stipulated, “The Author warrants, represents and covenants… all statements contained in the Work as published are true or based on reasonable research for accuracy,” and that my book could not plagiarize any other work, “or give rise to a claim of libel or defamation, or invasion of the rights of privacy or of publicity of any party, or violate any law or regulation.” My wonderful editor at Hachette understood from the beginning that it was my intention to get the book fact checked, but confirmed to me that I would have to pay for the checker myself; a legal read to protect Hachette and I from potential lawsuits would, however, be covered.
. . . .
Just as we entered the small window inside which my editor had told me we needed to fact check so as not to delay the book’s publicity plan, the fact checker I had hired needed to bow out of the project. I turned to acquaintances and to Twitter.
I received about thirty quotes from freelance fact checkers, most of them young reporters who did freelance fact checking on the side to gain experience and to pay the bills, as well as a few more experienced checkers who had worked for magazines like The Atlantic and The New Yorker. Some gave me payment quotes by the hour, and others by lump sum. My book was 110K words, about a third of which were memoir and about two-thirds of which were heavily reported material with extensive interviews and archival material. The quotes to check it ranged from $1,500 to $20,000. Ultimately, I chose a very capable young journalist and freelance fact checker named Maia Hibbett, who had just gone through the The Nation‘s renowned fact-checking internship program and was interested in the subject matter of my book. I paid her $4,000 in three installments to check my book in about six weeks.
Hibbett was excellent—and she found mistakes. Lots of them. A few examples: using more updated census data than had been available when I started writing the book, she corrected 24,170 square miles that make up West Virginia to 24,230. She inserted the word “before” into the sentence “Small-scale coal mining had been happening sustainably in pockets of the state since before the Civil War,” noting in the margin that the coal industry in West Virginia was active by 1840. She pointed out that a quote I attributed to a police statement was not ever written down, only said in court. And on and on. But not just small errors—also major errors in timeline, law, and geography. She pointed out mistakes in my presentation of cause and effect, and in my logic of interpreting the meaning of events and statements. “The larger the mistake,” the author Susannah Cahalan told me, “the harder it is for the writer to see it.”
. . . .
There is no industry standard for which books get fact checked—the ones that are checked get checked because someone (almost always the author) cared a more than average amount about the truth. There is no industry standard for what it means for a book to be “fact checked.” There is no industry standard for where the fact check should go in the production process of a book. And finally, there is no industry standard for how to hire a fact checker, nor how she should be paid or by whom, nor what should happen if the fact checker’s work isn’t good quality or the author refuses to pay for work already completed.
Of the 18 authors I spoke to, half had not hired a fact checker, but had instead relied on some combination of their own diligence, their publisher’s copy editing process and/or legal vetting process, as well as correcting mistakes in the paperback brought to their attention by readers of the hardback.
Literary agent Chris Parris-Lamb cites money as the main reason writers decline to fact check their books. My research suggests that this is partly true, but not the whole story. I spoke to writers publishing across the genres of memoir, essays, cultural criticism, and reported nonfiction; their reasons for not hiring a checker broke down along lines of both money and publishing experience. Regardless of genre, all of those who did not hire a checker were debut authors publishing their first book, or those who could not afford to pay a checker due to the size of their advance or other reasonable financial reasons—moving, illness in the family, a child’s school costs, etc.
. . . .
One of the authors I spoke to, who agreed to speak on the condition of anonymity, hired a fact checker recommended to her publisher by another of their authors at an agreed-upon rate of $5,000.
“It looked pretty good when it first came back to me, but then I started noticing some things that I had corrected before, which she had changed to incorrect things,” the author told me by email. “Or I noticed that she had caught some errors, but she had corrected them in a way that was still wrong. And she didn’t make any notes about how she had sourced her corrections, so it was nearly impossible for me to retrace her steps. And then there were all these things I’d specifically asked her to check, which she completely skipped over. It was a total mess.”
. . . .
“Fact checking was unexpectedly the most stressful part of the whole book process.”
. . . .
On the opposite end of the spectrum for publishers offering fact checking services lies the two original content imprints at corporate behemoth Amazon: Little A and Audible. Like Bold Type, Little A hires and pays the fact checker, while authors receive fact check edits simultaneously with copy edits. In 2018, in an unconventional move, Audible began acquiring the audio rights to the works of prominent nonfiction writers like Michael Lewis and Ada Calhoun. The goal was to produce audio books that would drop in advance of their hardback counterparts. Calhoun told me that Audible suggested and paid for the fact checking of her book; it’s no surprise that Amazon has the money.
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But the reason why the publishing industry has been slow to implement such guidelines for fact checking may lie further down in the foundation of the whole system. Without widespread consumer awareness that most books are not fact checked, or about which imprints publish which books, there’s no real reason for publishers to care about fact checking. If it comes to light that a book contains major errors, it’s the author, not the publisher, whose reputation takes the hit.
“No one looks at the publishing house’s name on the book they bought four years ago when Newsweek exposes it as inaccurate and says, ‘I’ll never buy a book published by them again!’” Scott Rosenberg of the now-defunct service MediaBugs told The Atlantic in 2014.
Link to the rest at Esquire and thanks to C.E. for the tip.
PG feels that a most salient fact was not included in the OP – If someone claims injury and hires a lawyer (likely on a contingency fee basis), the lawyer will want to make certain there is a deep pocket available from which to extract a large settlement payment or court award of damages.
PG thinks it highly unlikely that any contingency fee law firm would accept a case unless there was a publisher (and, preferably, a large publisher) on the other side of the suit. Why sue an author, who probably doesn’t have a lot of money and who is much more capable of hiding assets than a large publisher owned by a major multinational publishing conglomerate?
The answer will be exactly the same as it would be for an attorney taking a claim by a person injured in an auto accident. “Is there insurance? How much?”
Debbie Driver who works at the local Walmart all week, then goes out and gets together with her girlfriends on Friday night to talk about what jerks their ex-husbands are and get drunk together is not likely to be able to pay a jury verdict when she slams into a school bus bringing the band home from a football game. (Ditto for Darrell Driver).
Debbie or Darrell may well be able to file for bankruptcy, discharge the claims of all their creditors, including the people in the car they ran into on their way home from the bar, and go on with their lives, likely keeping most or all of their personal property.
If the band members want any money, they’d better hope there’s a big auto liability policy floating around somewhere. Unless there is, even if some of the parents of the band members have enough money to pay an attorney to sue Debbie, they’re unlikely to collect enough to pay their attorney’s fees, let alone damages for their children’s injuries, medical bills, etc.
In a former life, when PG practiced retail law, on more than one occasion, he had to tell a prospective client not to hire him to sue someone who had carelessly done something that harmed them because whatever he was able to collect wouldn’t be worth his client’s money or PG’s time.
Back to the calculus of someone suing an author for damaging their reputation, causing them emotional distress, etc. While it is possible to purchase liability insurance for this type of claim (an author’s home or auto policy won’t cover it), such insurance is expensive and only J.K. Rowling can afford to buy it.
Who’s the deep pocket that makes a lawsuit worth while? Hachette, Penguin Random House, et al. Since they published the book, it is quite likely they will bear responsibility for any damages their publication caused.
A concept usually described as “joint and several liability” means that if more than one person or entity harmed someone by their act, it’s not up to the person harmed to figure out who to sue for how much. The individual who was harmed is able to sue everybody and collect some or all of any judgment the court grants from any of the defendants who have the bucks or the property to pay the judgment. It’s up to the defendants to fight among themselves if one defendant is required to pay more damages than might be the case if a lot of the fault for the damaging act was really caused by something someone else did.
So, the bottom line is that, if a book is factually wrong regardless of whose fault the error is or what the publishing contract between the author and the publisher says, a lawsuit that would likely never be filed at all if the author had self-published the erroneous book will be filed if Simon & Schuster is on the hook for damages.
Additionally, it’s quite likely that Simon & Schuster, etc., has liability insurance to cover such claims, albeit with a very large deductible. It is not unusual for commercial liability policies to include a provision and permits the insurance company to sue anybody (Hello, again, author!) to recoup part or all of the money the insurance company paid to resolve a claim against the insured.
But, of course, everyone knows that smart and talented authors always work with a traditional publisher, the bigger, the better. The only reason not to do so is if they can’t write well enough to catch the fancy of an agent who, in turn, catches the fancy of an acquiring editor, etc., etc.
PG apologizes for going into full blather mode. He blames Covid.
A number of intelligent and experienced attorneys visit TPV on a regular basis. In addition to the comments of anyone else, PG invites those attorneys to clarify, expand upon, correct, etc., etc., any of PG’s thoughts or simply share their own thoughts on the OP.
