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Now at Trial, Law Profs Win Initial Round in Pocket Parts Suit: If Defamation Is Proved, It’s Per Se

Posted Dec 14, 2010 3:11 PM CDT
By Martha Neil

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Two longtime authors of the supplementary "pocket part" to a Pennsylvania criminal procedure treatise say they were shocked when they saw they were still listed as the authors of a "sham" new version in 2008, after refusing to revise it because of a pay dispute with West Publishing Co.

The embarrassingly thin update contained only a few new cases, contend law professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener University. And they were afraid, because they were listed as its authors, that readers would assume they were responsible for the poorly researched product, recounts the Legal Intelligencer in an article reprinted in New York Lawyer (reg. req.).

The two law profs, who wrote the 1988 treatise and put together the pocket parts every year after that until 2008, sued for defamation and are now at trial against West in federal court in Philadelphia.

West, which is represented by James Rittinger of Satterlee Stephens Burke & Burke in New York City, argues that it had a contractual right to use the law profs' names in the pocket part, even if they had no role in preparing it. Plus, it sent out a letter to subscribers clarifying that the law profs didn't author the 2008 pocket part and soon substituted a second supplemented pocket part for 2008 that provided a full slate of new cases, the legal publication recounts.

Rittinger also argued that the two profs weren't damaged by the publication of the initial 2008 pocket part, because they can't prove either that their reputation was harmed or that they suffered financially.

However, the profs' attorney, Richard Bazelon of Bazelon Less & Feldman in Philadelphia, argued that damage to their professional reputation is assumed and doesn't need to be proven, because this is a defamation per se situation, and Senior U.S. District Judge John Fullam agreed.

"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to determine whether the intended audience of the pocket part would conclude that plaintiffs authored an inaccurate and out-of-date supplement to the treatise," writes the judge in a recent two-page order. "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."

Earlier coverage:

ABAJournal.com: "Law Profs Sue West, Say ‘Sham’ Pocket Part Identified Them as Authors"

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