About This Blog

If you can shape it in your mind, you will find it in your life.

- Chinese fortune cookie

This blog is more than a blog, it’s a real book being written in real time. It’s a book I’ve been writing in my head for years as I lived it. I am setting down the story now as I continue to live it. I’ve written and published several paper-and-ink books, but I’ve never done one like this before. I’m making up the rules and learning as I go along.

I hope this will be an Interactive Book. Perhaps, as you read this, you will want to share with me your thoughts and insights. Since the events described here are relatively recent and they and the characters are based in reality, I especially hope to hear from those of you who may have been there at the time, or who knew the people I am writing about.

The New York Times Book Review often publishes little tombstones called Author’s Queries, that go something like this:

Author seeking information, documents or photos relating to the life of What’s-his-name during his childhood years, for biography. Please contact so-and-so.

So I am posting a sort of Author’s Query here because there are still a lot of missing pieces to this story. The chapters I’ve written so far are not carved in stone; they may be revised as new material comes along.

I am going to shine a light into some dark and hidden places. I do so with the knowledge that I may disturb a nest of resting vipers. Justice Louis Brandeis said, “Sunlight is the best disinfectant.” The Bible says, “The truth shall set you free.” Mine is a tale that needs to be told. I do what I must do.

This story will have an end, as all things do, but I don’t know what it will be as I write this now. I hope you will decide to join me on this real-life journey to that unknown end.

How to reach me:

blog response
email xana@hoveyhouse.com
fax 978 281-7745
phone 978 281-7732

Prolog

“In Dante’s Inferno the innermost Circle of Hell, the Ninth,
where the punishments are most heinous, is reserved not for murderers
and their ilk but for those who have betrayed a trust.”

In the year 2000, in Suffolk Superior Court, Commonwealth of Massachusetts, a jury awarded to two elderly women damages in the amount of $11 million, which was trebled by the court to $33 million. To put this in perspective, just three years earlier, Superior Court in Santa Monica, California awarded the same sum to the victims’ estates in the wrongful death lawsuit against OJ Simpson for the brutal killings of Ronald Goldman and Nichole Brown Simpson.

The Massachusetts case represents one of the largest awards in the state’s history (bracketed by record awards of $30 million in 1992 and $40 million in 2005 for medical malpractice resulting in massive brain injuries to newborns.) Unlike the OJ case and the medical cases, however, the lawsuit of the elderly women involved no death or physical harm; it was a contract dispute between two unknown co-authors and their tiny publisher. This action, and the numerous others springing from it involving over a dozen more defendants, mired the Massachusetts courts for a decade.

This is the story of the legal system run amok. It’s about conduct incompetent at best and unethical at worst. But most of all it is a tale of betrayals of basic sanity on many levels of the judicial system that is entrusted with meting out justice in legal disputes.

To slip too deeply into the machinations of civil litigation is to become a gnat ensnared in a web; once the process begins it may be impossible to escape. As the struggle runs its course, the pitfalls of human fallibility and institutional vagary are unforeseeable and uncontrollable. For that reason, no matter how just the merits or heroic the effort, the outcome will always be a crap-shoot.
Within this narrative lies a cautionary message for those who take lightly the phrase, “I’ll see you in court.”

If ye find not justice in the courts of law,
seek it in the court of public opinion.
- Chinese proverb

Chapter One

I am still determined to be cheerful and to be happy, in whatever situation I may be — for I have learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances. - Martha Washington

I arrived on time at my doctor’s office and took a seat in a cream and gray upholstered chair. I was there for my final, follow-up appointment after a routine surgical breast procedure.

In the previous couple of months I had gotten to know the receptionist, Marian, who always greeted me with a radiant smile. The question, “How are you?” was not rhetorical for Marian; she actually listened to the answer. At one appointment, though, her usual ebullience seemed strained.

I asked her if she wasn’t feeling well. “My daughter had a very bad weekend,” she said.

“What happened?” I asked, afraid I was being too personal.

“She’s been having seizures. They’re getting worse. She was born deaf and blind.”

Now it was my turn to listen. The child’s father had left them and Marian was caring for the three-year-old by herself.

Marian spoke of the difficulties of simply taking the child out of the house for fresh air, or of going for rides in the car.

“She’s terrified of strange places because she can’t get her bearings by sight or sound. Sometimes she just screams.”

“My God,” I said. “I’d never have imagined you were struggling with so much. You’ve always been such a bright spot in my visits here. You always seem so happy.

Her next remark came without a moment’s hesitation. “I have to be happy. If I’m not happy how will my little girl learn to be happy?”

Weeks passed and my incisions were looking less raw. I could wear a bra and fitted clothes.

Marian and I were chatting as I waited for the doctor. Her daughter was doing better, she said. I was so relieved to hear it. The doctor, manila file in hand, appeared at the door of the examining room and motioned me inside. “I’m feeling great,” I said to her, smiling. She looked at me carefully and then asked me to have a seat on the paper-covered examining table. She drew a deep breath.

“I have something to tell you.”

I didn’t see it coming. I’d gone through all kinds of checks before the surgery. I’d had no lumps, no symptoms, nothing suspicious in any of my pre-op visits. My mammograms were clean. “There’s good news and bad news,” she continued, laying her hand over mine. Then, reading the alarm that must have been rising in my eyes like mercury in a thermometer, she spoke quickly. “The tissue that was removed from your breasts, you know… Well, it’s…” She struggled for words. “They do a routine biopsy on removed tissue. They always do that. They found cancer cells in one breast.”

I stopped breathing.

“I’ve never had this happen before in my practice. After a cosmetic procedure, I mean,” — as if that information might reassure me.

“But the good news is it wasn’t a tumor. It was cells. Just cells. It was caught very early. It might not have shown up as a lump for two years — or more.”

The light drained from the room.

“Lie back,” she said, taking hold of my shoulder. “You’re about to faint.”

I don’t remember how I got out of there. Did I drive myself home? Did I go directly to another doctor, perhaps a cancer doctor, in the same building? Did I say goodbye to Marian?

During the next few days, numb with terror I was dispatched to an oncologist, then to a second-opinion-oncologist, then to a cancer counselor, then to a surgeon who would perform a mastectomy, then to the plastic surgeon who’d put me back together, assuming there was enough skin left to cover the implant once the recently-stitched, not-fully-healed edges were cut away.

Since the cancerous tissue had not been marked as to location during the cosmetic procedure, it was the oncology team’s consensus that the best, the only, course of treatment was to remove all the remaining breast tissue. Plus some lymph nodes to be sure the malignancy hadn’t spread. I would lose some feeling in my arm, I learned, but if there were no “involvement” of the lymph nodes, there was more “good” news: No chemo, no radiation. And a new, albeit fake, breast.

How does one’s body decide to grow malignant cells? What signal, impulse, trigger, causes evil cells to spring up where before were only good cells? A few months after the mastectomy when I went for a follow-up appointment, I asked the doctor how long those cells had been there.

“When did they start to grow?” I wanted to know.

“About a year ago,” he replied.

About a year ago. I am not a journal keeper except in times of extreme duress. About a year ago I had written in my journal, “This is taking a terrible toll on my body.” The “this” I was referring to was the second lawsuit. That journal entry was dated several months into the second lawsuit.

Time has passed. I have put the cancer experience behind me. Years later, when an acquaintance who had just been diagnosed with breast cancer called me in a panic for advice, I had a ready answer.

“Don’t worry.” I said. “In the hierarchy of bad things that have happened to me in my life, breast cancer is at the bottom of the list.”

At the top of the list is the second lawsuit.

Chapter Two

According to a recent survey 81% of Americans feel they have a book in them
and that they should write it.
The New York Times, September 28,2002

For most of the twentieth century, if writing a book was your dream, you needed a publisher to reach the readers who would buy it. To find yourself a publisher you needed a literary agent, the gatekeeper, who would usher your manuscript through a publisher’s door. Of course, if you’d never been published before, you didn’t have an agent and you didn’t even know any agents.

So you went to the library and the reference librarian would direct you to Literary Marketplace (L.M., for short), a thick book suitable for use as a boat anchor, containing lists in blindingly fine print of anybody related to publishing ó including literary agents.

Because your research had enlightened you as to the hopelessness of approaching a publisher directly, you studied up on how to write a pitch letter, the purpose of which was to interest agents in your manuscript. You compiled your list of suitable agents based on types of literary material they represented (as described in L.M.), spent hours at Kinko’s making copies of your cover letter and your manuscript (or a sampling of the best parts) bought padded mailing pouches and books of stamps, and optimistically deposited stacks of your creative expression at the post office.

Then you waited. And waited. When you decided enough time had passed that it wouldn’t seem pushy, you sent a letter inquiring if the unresponsive party had, by any chance, not received the package and offering to send another. It’s pretty much a sure bet you never heard from any of those agents, not even a “thanks, but no thanks.”

In desperation, with an oh-what-the-hell-it-can’t-hurt-and-may-help recklessness, you repeated the entire process, sending even more packages (to increase the odds in your favor) directly to the Acquisitions Departments of big and little book publishers.

And heard nothing.

Meanwhile there were the lucky ones who had, in some inexplicable way known only to God, made it through the no-man’s-land of never-been-published and who actually had an agent, a publisher and a book out there.

From the depths of despair, you’d wish with all your heart to be a member of the exclusive club of Published Authors who had found literary fulfillment.

Not exactly.

Here’s what you would be experiencing if you were one of them.

A literary agent, convinced of your manuscript’s potential, (said agent having been acquired through a miracle of Catholic proportions) would have persuaded a publisher to offer you a contract and for so doing would have taken a percentage of your meager advance. (The full term is advance against royalties meaning that you pay the publisher back from the first sales of your book.)

An editor would have been assigned to whip your manuscript into marketable shape, a publication date would be set, a cover designed, the galleys (the bound page layouts of the book) would arrive for you to read and mark for last minute changes, and the publisher might have sent you a copy of the upcoming catalog containing a picture and description of your book (just one among scores, maybe many scores, of other books being released by your publisher that season.)

The much anticipated publication date would arrive. You’d begin haunting bookstores. Your book might appear on a shelf in a couple of your local outlets. You’d call the marketing department with helpful suggestions.

“What about the other Barnes & Noble?”

“You know that little bookstore just a mile from my house? I’d love to do a signing there.”

In return for all your enthusiasm you’d get promises, and more promises.

Your regional newspapers would send a reporter and a photographer to cover the local author angle. You would be floating on hope, like a cherry atop an ice cream soda, raring for more. A couple of reviews would show up in unexpected places, which you’d take as a sign that word was getting around. You’d pass out the ten free copies from your publisher to your family and best friends who would congratulate you and tell you how much they loved the book.

And then you’d wait. And wait.

Presently you’d begin the next round of fruitless letters.

To your publisher’s Publicity and Promotion Director:

“Hi, Sue, I’m planning to be in Denver this summer on business. Would it be possible to set up a signing at The Tattered Cover?”

To the Books Editor of the Denver Post:

“Enclosed please find a press kit and a review copy of my book, Such and Such, published this year by…”

After a few months, as doubt has begun to nudge aside hope, your publisher will have moved on to the next season’s offerings. No one is returning your phone calls. How is your book doing in California? you wonder. New England? You wait for that first royalty statement. Please, please, you pray, let there be good sales figures.

There are three seasons in publishing: A book is designated a Fall, Winter or Spring title. A title is part of the front list for the period of its season. As soon as the next season arrives, the previous season’s titles join the back list. Unless they are moving off the shelves at a decent clip, bookstores return back list books to the publisher for full credit or don’t reorder them, thereby making room for the next season’s offerings.

With such a tiny window of opportunity, it’s only a few more months before you learn that your book has been remaindered, which means that unsold copies are being disposed of for pennies just to get rid of them. At this point your book is a flat turtle in the middle of the road.

This tale of woe happens to the vast majority of aspiring authors. (Those overnight bestsellers by first-timers are the rarest of rarities.) John Grisham (a top selling novelist for two decades) is reported to have hawked copies of his remaindered first book outside Walmart’s out of the trunk of his car.

During the 1990s there were more than fifty thousand titles published annually, of which less than a third broke even. Publishers worked on the wet spaghetti principle: Throw a bunch at the wall and some will stick. The ones that stuck paid for the flops. Publishers never spent serious money promoting a book unless it already had demonstrated in the marketplace that it “had legs” or the author was already well known. Those half-page ads in The New York Times Book Review were for books that were already bestsellers.

Though every individual book by an untested author was a risk, in the aggregate publishers did well with this wasteful, survival of the fittest system. The grand old dinosaurs of the book world had big city offices and large staffs - editors, designers, marketers, sales reps, art directors, artists, and folks who handled printing, binding, shipping, warehousing, advertising, public relations, and on and on.

The process of creating a finished book was labor intensive, time consuming and complicated. For instance, the copy that appeared on a finished page took many months to prepare. It was produced by typesetting machines that set text in columns on paper sheets that were literally cut and pasted by hand into page layouts. The designers who did this work were highly skilled and incredibly meticulous.

Publishers were the exclusive masters of all the intricate facets of production and delivery. The industry’s lifeblood, the inventory, was transported along their distribution networks from warehouses to retail outlets all over the country. Among themselves the major publishers had a virtual monopoly on access to the one place where all the rest of us went to buy books: the bookstores.

And that’s how things stood on January 24, 1984 when a gray gizmo smaller than a breadbox and named for a fruit was introduced. The reasonably priced Apple Macintosh, or Mac, worked with easy-to-use software that alchemized the look of finished layouts and real typesetting from pages of ordinary word processing. Literary wannabes everywhere immediately embraced the unprepossessing chunky cube with its revolutionary technology and the entire world of publishing changed overnight.

As the end of the century approached, books were being written, designed and laid out on Macs in home offices, garages and basements all over the country. Page layouts were mailed to offset printers, mainly in the middle of the country, from whence books could ship most economically both east and west. By the turn of the Twenty-first Century the Internet would break the stranglehold on the market held by brick and mortar bookstores.

Distribution companies sprang up to pre-sell small press titles to the chains, like Barnes & Noble and Borders, and the independents. The distribution companies’ warehouses received finished books from the printers and fulfilled orders from big wholesalers, like Ingram and Baker & Taylor, and the nation’s bookstores.

Meanwhile the little publishers deposited fat checks in the bank and continued to come up with successful titles. That’s about the time I wandered, pretty much by accident, into the wildcat world of independent publishing.

Today we are at the leading edge of another wave of change in publishing, this one being driven by the Internet. Everyone with a product to sell can make it available to be found by those interested in purchasing that product. On the Internet, everyone, even those without money to invest, can be a marketer supreme.

Among the entrepreneurial front runners in taking advantage of the new technology are the music makers, led by a bunch of kids who cut their teeth on a computer mouse. Like the publishing industry, the music business has always been controlled by the major labels and the radio stations. These were roughly analogous to big publishers and bookstores. To make a record you needed a contract with a recording company. The recording company would then do its best to secure airtime so potential buyers could hear your music. An artist on his own had a snowball’s chance in hell of getting so much as a minute of airtime and thus a chance to sell records.

The Internet has changed all that. Unknown basement bands can make a CD for pennies, put up a web site with samples of their music and sell downloads on the spot. Music blogs, run by enthusiastic fans, expand the exposure exponentially by sampling bits of their idols’ work (sometimes more than bits, which raises issues of copyright infringement) for other fans to download free, thereby spreading the word to tens of thousands more potential fans. Tiny music labels and unknown groups have risen to stardom and riches in a matter of days.

The star-maker machinery, in the words of Joni Mitchell, has been retooled to give the independent press (known as "indies") a big boost. Amazon, the company that revolutionized the way people purchase books (and grabbed itself a huge market share in the process) is now expanding the breadth of kinds of books people will be able to purchase. Advantage, a special Amazon program for the small press sector, offers all the advantages a big publisher’s books enjoy. Amazon will list any title with its own web page and provide an account to process sales, collect and remit money and ship books. And Google, that Goliath of the Internet, has a “Partner Program” designed to “help users discover your books by matching content with user searches.” The program offers to “preview samples, drive buyers to bookstores, online retailers and your own web site.” Indie authors are also making one or two minute promotional videos and posting them on Google Video and YouTube.

The New York Times Book Review will consider reviewing titles that sell at a rate of as little as one hundred copies a week. Kirkus Reviews, an influential trade publication, will consider indie books that have sold as few as 500 copies, or review any book for the modest fee of $350.

The independent book world is riding the lip of another towering tsunami. “Self publishing was once considered as bad as vanity press, but with so many self-published successes in the past few years it is now possible to self publish with respect,” according to John Kremer, indie (independent) press marketing guru. “Publishers Weekly [the industry bible] will now look at self published books, something they would never have done five to ten years ago. And now with print on demand [POD: the ability to print, in a short period of time, small numbers of books as needed] it’s possible to self publish at little cost. In fact, many larger book publishers now scour the shelves and Internet for self published and POD books that could fit their publishing program.”

In his book "The World Is Flat", three-time Pulitzer Prize winner Thomas Friedman chronicles the enormous changes the Internet and World Wide Web have made in just the first few years of the Twenty-first Century. Friedman sees the Internet as a great leveler that bestows on the meekest among us the same ability to participate in the great flows of information and commerce as that traditionally enjoyed exclusively by high and mighty individuals, institutions and corporations. "This newfound power of individuals and communities to send up, out, and around their own products and ideas, ofter for free...is fundamentally reshaping the flow of creativity [and] innovation... More than ever, we can all be producers, not just consumers." He adds, "And you ain't seen nothin' yet."

Kremer's optimism is consistent with Friedman's. He tracks indie press success stories, maintaining a list of Top Indie Publishers who do $50 million to $200 million in annual sales, as well as a Self Publishers Hall of Fame and an extensive Indie Bestsellers Hall of Fame. His enthusiasm knows no bounds. The whole system, he believes, has become one big wide-open field of possibilities to sell books and make money.

Chapter Three -

How to build a bestseller: Make up the rules as you go along.

In 1988 I had bought my first Mac, having learned its usefulness in a previous job running a marketing communications department and producing a newsletter for a national franchise.

I was separated from my husband at the time, the sole support of two teenagers and nervously self-employed. I designed brochures and other marketing materials for small companies and trawled for new clients by writing absurdly low-paying freelance articles for local newspapers.

One story concerned a Boston-based elder law attorney, Harley Gordon, who presented seminars on asset protection to seniors worried about going into a nursing home. After my article appeared, I got a call from Harley. He liked the piece and wanted to meet with me.

On a fateful Sunday afternoon in early spring, Harley came to my basement office to discuss his ideas for a book. He was short and compact, neatly dressed, in his forties. He sat down directly across from me and was immediately focused on convincing me to help him. The book would mirror his lectures on legal strategies for preserving life savings from the ravages of long-term care. It would be written in plain English, no legalese (my job), so that elderly people could understand.
Not a subject that lit up my Christmas tree, I told him.

Still he persisted. Health insurance doesn’t cover the devastating cost of long-term care, he explained. Neither does Medicare. This is a subject of vital importance, not only to seniors but also to their offspring who would be witnessing the rapid depletion of their inheritance should a parent go into a nursing home. The Great Generation and the Boomers: That’s a huge demographic. This book would sell like hot cakes, he assured me, in not too original language.

“A book is more of a commitment than I am willing to make,” I told him. “I’m not the girl for the job.”

At that point, Harley reached into his briefcase and pulled out a slip of paper that he slid facedown across the table between us. “I just want to be sure I have your attention,” he said. I turned it over. It was a check for five thousand dollars. Two years from that day, when we received from our accountant a tax return for the first year’s earnings of the book, we realized we had grossed over $1.6 million.

We had also been sued. For me that suit, catastrophic as it turned out to be, was but a warm up for the main event.

That early period, however, before the legal troubles hit was thrilling. At some time in the past Harley had hosted a legal advice talk show on a Boston radio station. When we didn’t hear back from any of the publishers we’d sent manuscripts to, Harley proposed printing the book ourselves and selling copies via talk radio. He would pay the printing costs, a few thousand dollars. We would publish under a name he had considered for his seminars, Financial Planning Institute.

We hired a Mac-savvy designer to do page layouts (that took a couple of months) with which we ordered six thousand copies from a local printer. We chose a long, descriptive title: How to Protect Your Life Savings from Catastrophic Illness and Nursing Homes. The first edition was a pretty amateurish looking affair, with a rather goofy cover designed, I'm sorry to say, by me. I began pitching producers of local talk shows (there were many of them in Boston at the time) and booking interviews for Harley, who turned out to be a highly polished interviewee. Switchboards at radio stations lit up with calls from worried listeners. The shows’ hosts were amazed at the enthusiastic response of their audiences to Harley’s message.

We ran around delivering cases of books to some of the local bookstores, leaving them on consignment. In a matter of weeks, we had sold out our entire inventory and ordered ten thousand more copies, paid for out of the proceeds of the first sales.

Around that time we learned that the trade show for the American Booksellers Association was being held at the Javitz Convention Center in Manhattan. Every publisher in the country would be there. We decided to attend and hand out our book, hoping for a publishing deal.

This huge annual event was referred to in the trade by its sponsor’s acronym, “ABA,” as in, “Are you going to ABA this year?” It comprised booth after booth of all the collected knowledge and culture of the world, compressed into thousands of volumes — big, handsome coffee table books, little novelty books, books with beautiful glossy photos, books with pop-up images for children, more fascinating books, more beautiful books, more original books than I had ever imagined existed in the world.

We also encountered our first distributor, an outfit from California whose convivial staff invited us to a party back at their hotel. An early entrant into the independent distribution field, Publishers Group West, a.k.a. PGW, was founded in 1976 and didn’t initially set the publishing world aglow. In 1989, however, tiny Earthworks Press produced 50 Simple Things You Can Do to Save the Earth which sold over a million copies. With an expanding stable of small publishers cranking out solidly successful titles, PGW rapidly established itself as the leading small press distributor in the United States.
At ABA we were bumpkins in the Big Apple, picking up too many handouts at too many booths and stuffing them into Baker & Taylor shopping bags decorated, for some reason unbeknownst to us, with the sweet faces of Scottish Fold cats. We walked, starry-eyed, up and down the isles of the convention center, handing out our frumpy book, chatting up publishers’ reps, trying to figure out who might be an agent, who a publisher, and hoping to learn as much as possible about this unfamiliar world in the brief time we had.

What we learned almost immediately astounded us: We were not entirely unfamiliar figures among that crowd. Huge and far-flung as the publishing industry was, news traveled fast. Word of the strong sales of our book had already arrived like reports of successful nectar-gathering telegraphed from one bee to rest of the hive. Within days of my return to Boston, four contracts arrived, overnighted by publishers wanting to sign our book. One was from Fred Hill, something of a legend in the industry for shepherding The Road Less Traveled to super bestsellerdom.

We were now faced with an exhilarating dilemma. Which publisher should we sign with? — if any at all. We knew what we didn’t know, which was just about everything about publishing. But we also knew we had sold a lot of books in a little bit of time and we, not a commercial publisher, got to keep most of the proceeds.

At that point someone suggested that we speak with John Taylor (Ike) Williams, with the firm of Palmer & Dodge, who was reputed to be the preeminent literary attorney in New England. We arrived at Palmer & Dodge’s posh offices, much more impressive than Harley’s, contracts in hand.

Ike greeted us with a firm, dry handshake. He was a tall, lean patrician, a Yankee-style Master of the Universe right out of Central Casting, whose slightly clenched-jaw speech suggested fancy prep schools and Ivy League polish. He wore a blue Oxford cloth button-down shirt, no doubt Brooks Brothers, a tiny bit frayed at the collar (blue blood frugality), and a Harris tweed jacket with suede elbow patches.

We explained our situation, chatted briefly and left copies of the contracts for Ike to review. We would talk again in a week or so about how best to proceed with the book.

It didn’t take that long; in fact, the decision was made by the time we got back to our own offices. We had found a distributor (PGW) who could get books into bookstores and we had devised a proven system to move them rapidly off the shelves. What did we need a publisher for? We printed more books.

For the next year and a half we repeated the publicity formula all across the country. Working from fat green volumes of Bacon’s Media Directory (containing contact information for every media outlet in the entire US) we booked scores of interviews on radio talk shows. I set up an in-house advertising agency so that we could qualify for the fifteen percent agency discount. We purchased sixty-second spots on the interviewer’s show that ran for days or weeks following Harley’s appearance. I hired a small staff consisting of an office manager (my daughter, Liza), a secretary, and a media buyer who placed and tracked our advertising and kept us supplied with her special homemade pizza bread. We all worked out of a hastily improvised office in my basement. I brought in an outside publicist, Bob Newman, a brash young man with an instinctive nose for the business, who, week after week, booked some of Harley's best interviews. Newman Communications is today one of the top book promotion houses.

What made this book unique was the element of desperation among prospective buyers. Families facing a catastrophic illness had almost nowhere to turn for help in making crucial decisions. Timing was an essential factor in protecting assets. If you waited too long before acting, you could be wiped out. Millions of hard working, tax paying elderly people faced the possibility of living out their Golden Years below the poverty line. The ad copy I wrote stressed the urgency of acting quickly.
I set up an 800 number going to an answering service that captured orders and flipped them to a fulfillment company that shipped books. I insisted that the radio spots be informal “live reads” by the host who had conducted the interview, not a pre-recorded pitch by a staff announcer, so the message came across to the audience as a personal endorsement. The host (who was invariably male in those days, probably still is) was willing to put a little moxie on the ball, like prefacing the written copy with: “Hey folks, remember that guy on the show last week talking about saving Mom and Dad’s house?” The pitch was enhanced by self-interest; a good response would keep the ad dollars flowing into the talk jock’s column.

We were able to track ad responses geographically by matching shipping addresses to the DMAs (designated market areas) of radio stations currently airing the ad. For instance, if WBLA’s DMAs included all New England, we knew that an order coming from, say, Boston had been generated by WBLA. When we began an ad run, the response was always immediate but then would begin to tail off. By studying the origination zones of our orders, we knew exactly when a particular radio station was no longer cost effective and could quickly move on to another.

We spent hundreds of thousands of dollars on that ad campaign. Today it could be done, and probably done better, for mere pennies on the Internet.

We were doing well by doing good. The rich could afford good health care, the poor had Medicaid, but middle class families had no safety net and were at risk of losing everything in the event of a protracted health crisis. In letters and phone calls from all over the country grateful book buyers reported that How to Protect Your Life Savings had saved their families from financial ruin when a husband or parent was stricken with Alzheimer’s or Parkinson’s or a stroke.

Day after day we continued to reach from coast to coast. Harley did phoners with California talk jocks in his pajamas in the wee hours. At that time, the king of late night talk radio was Larry King. King had the largest audience and widest geographical reach of any radio host in the country. I had been trying to book his show for months but got no response to the mailed press kit and couldn’t get to the show’s producer by phone to make my pitch.

Someone told me Larry King was going to be at a Boston hotel for a signing to promote his latest book. The room was packed when I arrived. The guest of honor was standing behind linen covered banquet tables stacked with volumes ready to be autographed. I purchased a copy, got in line and waited with scores of excited fans. When I reached the star I surprised him by handing him a copy of How to Protect. “This is a very important topic for your audience,” I blurted. “Harley Gordon has been on many talk shows and the phone lines burn up when he speaks. Who should I talk to about booking him on your show?”

King looked down at the book I had given him, opened it and scanned it for a few moments. He turned to the frontispiece and scribbled something. “That’s my producer's name and direct line. Send him this book,” he said handing back the book I’d given him. Then he took the copy of his own book from my hand, opened it, asked my name, wrote something and returned it to me. I thanked him. He gave me a big smile and I moved on.

When I opened my copy of How to Protect I saw he had written a name and phone number and the words “Chris — Book this guy.” Inside his own book he had written: “Jane — I think I love you. Larry King”

Larry King was reputed to have a fondness for the ladies. I had had a brief stint as a Bunny in the Boston Playboy Club right out of college. It apparently hadn’t hurt that I had piled on the glam for this encounter. Harley was on the show a few months later. Our answering service laid in extra overnight staff to handle the expected calls.

The lines lit up within minutes of the start of the interview and continued past dawn and into the next day. Thousands of orders poured in. A staff member on King’s show later told me that the interview had generated the strongest response she’d ever seen. Bookstore shelves emptied literally overnight. How to Protect was one of PGW’s bestselling books that year. A big commercial publisher never would have done the job on our book that we had done ourselves.

Chapter Four

Chapter Four

They have no lawyers among them, for they consider them as a sort of people
whose profession it is to disguise matters.
- Sir Thomas Moore, 1478-1535

The Verified Complaint arrived out of nowhere. Harley and I each got a copy. Armand Budish, an elder law attorney like Harley, was suing us in Federal Court in Cleveland, Ohio for infringement of his book, The Medicaid Trap, published in 1989, the copyright for which, the complaint stated formally, had been registered with the Copyright Office. I was so naïve at the time. I remember thinking, Of course it was registered with the Copyright Office; it was a published book.

Without specificity, it was alleged that our book, published a year later, had been — what? slavishly copied, stolen — from his. We were stunned. How could this be? Certainly this was a mistake. Harley said we needed an attorney who understood intellectual property. The term was unfamiliar to me. I looked it up: Intellectual property is a product of the intellect that has commercial value, such as literary, artistic and musical works which are protected by copyright; inventions which are protected by patent; and commercial names and symbols, which are protected by trademark.

Palmer & Dodge handled intellectual property but Harley had almost fainted when he saw Ike’s bill. Harley asked around among his lawyer friends and got the name of a small Boston firm, Bromberg and Sunstein, that was said to specialize in IP. Their offices were as humble as Palmer & Dodge’s were impressive.

Lee Bromberg and Bruce Sunstein joined us in a narrow, municipal-green conference room with overhead lights casting dreary shadows beneath the worn furniture. Framed law degrees, U Cal (Sunstein), and Harvard (Bromberg) were the room’s only ornament. Harvard, I thought. That’s good.

We handed them two copies of our book and a copy of the Budish book purchased by Harley on the way over. They said they had read the complaint that Harley faxed over in advance of our visit.
The claims were broad and vague, they opined: essentially, our book infringed his book. The four of us spent some time comparing and contrasting the copies spread out on the table. Both books covered the same subject: legal strategies to protect assets for people facing long-term care. Both books offered boilerplate legal strategies involving transferring the infirm family member’s assets out of his and his spouse’s name and into the names of his offspring or into trusts.

The material in the two books, however, was organized completely differently. The Budish book was dense and technical, explaining in lawyerly detail the complicated state statutes and federal Medicaid regulations that governed this area of health care law.
In contrast, our book was written for someone with a tenth grade education. It focused on the individual family’s financial situation and the specific assets they needed to protect, not the law itself, with examples and corresponding solutions. It was See-Spot-run simple, as Harley had intended. I knew that not a sentence in the text of our book replicated one in the Budish text.
The Medicaid Trap had been out for about a year when we began work on How to Protect. I had read it; in fact, Harley had given it to me with the admonition, “This is what we don’t want.”

“Did you look at this guy’s book when you wrote yours?” the lawyers asked.

“Of course, and everything else on the subject that I could get my hands on. That’s called research,” I replied.

“Did you lift any language, take any words and phrases, from his book and use them in yours?”

“Of course not,” we said in unison.

“There appears to be no substance here. The complaint doesn’t specify what you are alleged to have stolen. I can’t see where he’s going with this,” Bromberg said.

“Our book is selling like hot cakes,” Harley commented, (he liked that expression)“his book isn’t. Maybe that has something to do with it.”

“Frivolous suit,” Bromberg pronounced.

Frivolous or not, it wasn’t going to just go away. “This is going to cost serious money,” Harley had said when the complaint arrived. His early assessment was being confirmed as we sat around the worn conference table, squirming in uncomfortable chairs. We had to file an answer. The answer would be a denial on all counts. There would be depositions, interrogatories, the gathering of many cartons of financial and sales records. At some point in the process, when it had become apparent that there was no basis in fact for this suit, we would file a motion to have it dismissed, the lawyers assured us. We might even get our legal fees back.

Harley asked for an estimate of what the case might cost. It seemed to be a straightforward matter, they said, probably thirty-five to fifty thousand. I groaned inwardly. Harley wrote a five thousand dollar check for a retainer and we left, understanding little more than when we arrived.

Lee Bromberg would handle the case with an associate, Kerry Timbers, fresh out of Harvard Law. Discovery, the process whereby each side gathers documents and testimony to support their version of the case, began almost immediately. Notices of our depositions arrived in June; mine was to be first. A deposition is where the opposing attorney can ask you anything he wants in order to get something from you to use against you, Harley said. “They can go through your underwear drawer with a flashlight, if they want,” was the way he put it.

A week ahead of the date I went to Bromberg’s office to be prepared. “This is civil, not criminal and you have no First Amendment protections like you see on TV,” Bromberg explained. “You have no right to remain silent. In your deposition I may object to a question for the record but then I’ll usually instruct you to answer. Wait for my objection before you do.”
The rest of the advice was pretty simple:
Tell the truth.
If you don’t know an answer, don’t guess; say, I don’t know.
If you don’t remember, say, I don’t remember.
Don’t give more information than is required to answer the question.
Don’t rush.
Don’t ramble.
“What are they looking for?” I asked. Bromberg said his office had gone over the two books with a fine-tooth comb and found no duplication of any of Budish’s work in our work. No surprise, but that was reassuring to hear. Soon enough we were to learn that the fine-tooth comb they’d used was missing a tooth.

Attorney Kenneth Adamo, was tall and gaunt with thinning hair and an ashen complexion. He was already in his chair when I came into the room and he barely looked up. Adamo had flown into Boston from the Cleveland branch of a sprawling national firm. He sat at one end of the conference table, I sat at the other, Bromberg beside me on one side, the stenographer on the other. The stenographer asked the spelling of my name and administered the oath: “Do you swear to tell the truth, the whole truth…”

The lawyers discussed some technicalities that I didn’t understand regarding the way the deposition was to be conducted. Then Adamo began the questioning. He asked me about my background: Marital status. Schooling. Work experience.
What did I know about Medicaid?
Nothing, before I met Harley.
And now?
I know that Medicaid is a Federal program that pays for nursing home care for people who have no assets.
How had I met Harley?
I wrote an article about him.
How did we write the book?
Harley dictated his lectures to me and I cleaned them up and gave them back as a manuscript.
Where did you do this?
My office.
When did you begin? What month? How long did it take?
Where is he going with this, I wondered? He had put no documents before me to identify, as Bromberg had told me he might do. There was no sign of either book in the stack of papers beside him.
Finally, after three hours of questions that seemed to be aimless, he raised the topic of his client’s book, The Medicaid Trap.
Had I read it?
Yes.
Where did I get I?
From Harley.
Where did Harley get it, if you know?
At an elder law conference he had attended. From Armand Budish himself.
Did Harley read the book?
I believe he read enough to know he didn’t like the way it was written.
What did you think of it?
It was very technical. I couldn’t understand it.
What do you mean by technical?
All the legal language.
Adamo’s eyes narrowed and he began speak in a slow and deliberate manner.
Do you know what the National Governors’ Association is?
I’m familiar with it.
And what is it?
I know that the organization, the NGA, prepared charts showing state by state what assets were exempt from being taken by a nursing home.
Mr. Adamo retrieved from his briefcase a copy of How to Protect and handed it to the stenographer to be marked as an exhibit. She wrote a number on a little sticker and affixed it to the cover.

Adamo rose from his chair and leaned forward to hand me the marked book.
I ask you to direct your attention to the book before you. Is this the book you and Mr. Gordon wrote?
Yes.
He continued standing as he read the questions from a yellow legal pad he was holding in his hand.
Did you include certain charts or tables in preparing this book?
Yes.
I direct your attention to the page I have clipped open in what you have identified as the book you co-wrote with Harley Gordon. Are those the charts you are referring to?
Yes.
Did you get permission to use them?
They are public domain. Anyone can use them.
How do you know that?
I called the NGA and they told me I didn’t need permission.
Where did you get the charts that appear in your book?
You mean, from where, physically?
Yes.
Harley got them at the same elder law conference, but he couldn’t find them in his files.
Is it possible you took them from my client’s book?
It’s entirely possible. I didn’t do the layouts myself so I don’t know for sure. We hired a designer to do the layouts.
Did you have a copy of my client’s book in the office at the time?
Yes.
At this point I noticed that the papers Adamo was holding had begun to flutter slightly as if in a breeze.
Did you get my client’s permission to use those charts?
Why would I do that? I didn’t need to.
Why is that?
Because the charts in your client’s book were from the NGA. They had an attribution at the bottom — “Source: National Governors’ Association Report.”
Adamo’s face tightened. He seemed angry.
But you eventually got the charts from the National Governors’ Association, is that correct?
No, I said I’m not sure. I don’t recall our having the NGA charts.
But your recollection is that the charts in your book, in fact, were taken from the NGA charts.
No, that’s not what I said.
Adamo returned to this line of questioning and rephrased the question a dozen times pressing me to say that the charts in our book had been taken from the NGA charts and each time I repeated I had no recollection of that.
Do you know what a primary source is? He demanded.
Yes.
Did you ever go to the primary source for a copy of those charts?
I don’t think so. No.
Suddenly it was over. “We’re done here,” Adamo snapped and abruptly turned his back.

“What’s with those charts, Lee?” I asked after Adamo had gone. “Did you see his hands shaking when he asked me about them?”
“Did they?” said Bromberg. He didn’t seem worried in the least.

But I was worried. When I got home I wanted to compare the charts in the Budish book with the NGA charts but I didn’t have a copy of either. I called two local bookstores but neither had The Medicaid Trap in stock. The book had come together so quickly I couldn't recall how or when the charts went into the layouts.

Harley’s deposition was scheduled for 9:00 the next morning. I called him at home that night. “There’s something going on with those NGA charts,” I told him. “I testified we may have copied the charts out of Budish’s book. Maybe Budish made some little changes in those charts. Just be careful and be exact. We don’t want to appear to be lying about anything.”

I called Harley the next day after his deposition.
How’d it go?
Fine. Piece o’ cake.
Did he ask you about the charts?
Yes.
What did you say?
I said, “Everything in my book is original except for what is attributed to a public source.” I groaned inside. Lawyers! Why couldn’t he just have said flat out, “We probably got the charts from the Budish book”?

***
Copyright is intended to promote creative expression by offering the creator the exclusive right to commercially exploit his work for a set period of time. A copyright is literally “the right to copy.” A painter’s painting and a poet’s poem are protected by copyright. No one other than the painter or the poet has the right to make copies of, or otherwise financially benefit from, their work.
Originality is required for copyright protection purposes, but it may be minimal. Lists of selected things in alphabetical order, Best Restaurants in Boston, for example, are protectible by copyright.

The law recognizes that society has an interest in fostering, rather than completely stifling, creativity and so the protections of copyright have a limitation in the principle of “fair use.” Fair use is when The New York Times quotes a couple of lines or a paragraph from a book in a book review. The Times has created something new that includes a little bit of another creator’s copyright-protected material. The courts in intellectual property cases try to strike a balance between competing interests: protection for the creator, encouragement for a fertile field of related creators.

***
A day or two after Harley’s deposition Bromberg called with the answer to the mystery of the charts. The charts in the Budish book were indeed from the NGA but Budish had made some minor changes.

It would have been nice if you had checked the charts and advised Harley of that before he went into his deposition and made that wishy-washy statement, I said.

Not to worry, Bromberg replied, the changes were tiny, insignificant. A couple of transposed columns, different headings, an item or two deleted, a word or footnote changed here and there, that kind of thing. It’s insignificant, de minimus. The amount of original material is so little Budish himself didn’t claim authorship. He gave full credit for the charts to the NGA. It’s fair use. That’s our defense.

We were running out of books again and getting ready to go back to press. “Shouldn’t we just take the charts out completely?” Harley asked our lawyers. “The book would be fine without them. Or we could use the NGA charts unaltered.”

Not necessary, we were told. Bromberg said just to be on the safe side, his firm would handle the charts, reworking them and stripping out anything that could potentially cause trouble. We printed another fifty thousand books containing the new Bromberg and Sunstein charts. As late as a year after our depositions, a court document (Defendant’s Responses to Plaintiff’s Request for Admissions) prepared and signed by Bromberg asserted that the National Governors’ Association Report had been the source for the charts in our book.

Days after the new books hit the streets Armand Budish filed a motion for a preliminary injunction to restrain us from selling any more books. There was to be a hearing on the motion in September in Federal Court in Cleveland, Ohio. The night before we flew to Cleveland my insides went into wild rebellion and I barely made it to the plane the next morning.

The good news was that How to Protect was selling briskly and inventory was dropping fast.
The hearing lasted two days. We returned from Cleveland feeling that the light at the end of the tunnel was in sight and went back to selling out fifty thousand new books while confidently awaiting the judge’s ruling. Weeks passed. Harley continued to do radio and television interviews in major markets all across the country and on national outlets like CNBC and National Public Radio. Life returned almost to normal.

The restraining order hit us like a bomb. I got the call from Bromberg at 7:00 in the evening. We could not sell even one more book, Bromberg told me. We had to pull the plug on the whole operation at nine o’clock the next morning or face serious penalties for contempt of court. The timing couldn’t have been worse. We had printed one hundred thousand more copies with the Bromberg and Sunstein charts, at a cost of $120,000, and I had confirmed that morning that they had just arrived at the distributor’s warehouse. Shortly after that shock we received another: a bill from Bromberg and Sunstein — for somewhere in the neighborhood of $200,000.

The basic thrust of the judge’s ruling went like this: Our new charts were derivative of the Budish charts. Though we had tried to conceal our true purpose by making minor changes, the Court held, the charts in our book intentionally infringed Mr. Budish’s copyright. Our conduct in printing more books containing the infringing charts, having been put on notice of the plaintiff’s registered copyright (that formal language in the complaint again), was an example of flagrant disregard for the law, made all the more egregious in that Harley Gordon was himself an officer of the court.
“Four weeks before the hearing,” the Opinion stated, “Defendants again denied copying their tables from The Medicaid Trap.” That denial was in the Response prepared and signed by Lee Bromberg a year after our depositions. We looked like brazen liars. “The Court makes all credibility determinations against Gordon,” the judge wrote. And the revised charts authored by our lawyers had actually elicited from the Court an accusation of a new infringement: "...the derived work...is itself an independent violation of the copyright law."

Budish’s winning argument had relied heavily on a case just handed down by the Supreme Court in 1991. “The Feist opinion began with the well-grounded proposition that although facts themselves are not copyrightible, compilations of facts are.” The key to copyright protection is determining “whether the selection, coordination, and arrangement is sufficiently original to warrant protection.” In other words it was the format that was protectable by copyright, not the facts. “The requisite level of creativity is extremely low; even a slight amount will suffice…no matter how crude, humble or obvious it may be.”

Most astounding of all was the Court's finding that Budish’s misleading attribution to a public source did not “demonstrate that Budish intended to disclaim any protectable interest in his tables.” What!? How was someone supposed to know that they’d be accused of “literary larceny” if they copied those charts?

That judge must be nuts, I remember thinking. Our book was completely and totally dissimilar, yet she had focused on those goddam charts. My knees almost buckled as I hung up the phone.

The story made the national and local legal journals, the AP wire, The New York Times, The Wall Street Journal and, of course, all the Boston papers. Harley and I decided we had no choice but to settle the case and we called Lee to tell him. Lee protested.

“The judge is wrong,” he insisted. “You need to stiffen your spines and file an appeal. This was just a ruling on an injunction. You need to take this case to trial.”

“We lost on the injunction; we have no cash flow,” Harley reminded him. “We have to get the injunction lifted. We need you to call them and tell them we want to settle the case.”

Lee refused. He was unwilling to put in any more time, he said, without an immediate payment of $60,000 and an additional $60,000 per month. Shortly thereafter he ceased returning our phone calls.

We flew back to Cleveland for a settlement conference, represented by a Cleveland lawyer who knew nothing about the case. Both sides would be meeting in chambers with a new judge. On our side paranoia was rampant. When we arrived we heard a rumor that someone had gotten wind of a possible ex parte meeting (a meeting with one party —us— not present) between the Cleveland lawyers and the Cleveland judge. We felt like lambs being led to slaughter.

The judge reminded me of General Patton and acted like a top officer accustomed to being in full command. We were briskly motioned into a row of seats in front of his huge mahogany desk. He wanted a settlement — now. He immediately began turning up the heat: he threatened Harley with disbarment and both of us with charges of criminal contempt.

Budish was demanding $900,000. How much had our book earned? That much? So $900,000 was not unreasonable when the book had grossed a million six its first year. There was some discussion of how the press had gotten the story; apparently the source was a press release from the Budish camp.

We signed a confession of judgment. I balked at the word “confession.” It doesn’t mean you are confessing to doing something wrong, I was told, it means that you are agreeing to a judgment amount to settle the case. The price tag: we were to pay $750,000 in damages, $150,000 immediately and the balance over two years at four dollars per book, in order for the court to lift the injunction and allow us to sell books.

To protect the book’s commercial viability Budish agreed to refrain from issuing negative publicity. The settlement documents were sealed by the court to protect the reputation of the book.
Sealed, but not expunged. A ticking time bomb.

But it was too late to revive How to Protect. It had been pulled off bookstore shelves all over the country and word of the injunction had seeped like a stain throughout the industry. Publicity had been completely derailed for weeks on end. Sales were down to a trickle. For all practical purposes How to Protect was dead.

In the weeks following the settlement Harley began to talk to his lawyer friends about a malpractice suit. One of them contacted Bromberg and Sunstein on our behalf and informed them that we were challenging the outstanding balance on the bill and considering a malpractice action. Bromberg’s response was to seek and obtain an ex parte attachment on the company’s bank account and on my personal bank account, totaling approximately $13,000. In his affidavit, Bromberg stated that his clients were pleased with the quality of his firm’s work and were simply refusing to pay the bill.

Another of Harley’s lawyer friends took the case on contingency and we sued Bromberg and Sunstein for malpractice. While that action was going forward Budish engaged a Boston law firm to transfer the judgment from Ohio to Massachusetts and initiate a new suit to collect the money. For many months I faced the terrifying possibility of losing everything, not only my livelihood but also the home where my children and I had resided for two decades. I would wake up in the middle of the night and pace the floor for hours.

Eventually there was an offer of settlement from Bromberg and Sunstein’s malpractice carrier. After our lawyer took his one-third contingency fee, the balance went toward paying off the judgment. Harley and I didn’t receive a penny.

Many months later I was cleaning out my office. The staff was long gone. The extra phone lines had been turned off. The press kits, stacked in orderly piles along the walls, were collecting dust. Surrounded by remnants of a once thriving business, I still could not grasp how things had gone so terribly awry.

I came across a folder marked “Unsolicited Testimonials” containing grateful letters from people who had bought the book. I picked out one letter: “My mother suffers from Alzheimer’s…” And another: “Since his stroke my husband can’t walk or speak…I didn’t know where to turn…”
My eye lit on a box of books on copyright law sitting in the corner. I grabbed the top one and sat cross-legged on the floor, flipping pages. Alone after all those many months of bewilderment, I was still looking for answers.

Suddenly pieces of the mystery, like shards of broken china, fitted into place. Fair use, I read, does not cover situations where the use is for a commercial purpose, is in a competing work, or where the use may affect the market for the copyrighted work.
Oh, my God, I whispered to myself. Our book was published for a commercial purpose, did compete with his book and did blow his book out of the marketplace. What were our lawyers thinking in relying on a fair use defense?

I read on. “Copyright infringement may be innocent when the work taken does not bear a copyright notice or that notice is in some way defective.” Innocent! That was exactly what we were. How could we have known? The notice was defective. The attribution to a public source indicated the charts were free for anyone to use.

I reached for another volume, The Copyright Book by William Strong, and flipped to a section marked “The Innocent Infringer.” A person who uses someone else’s work, I learned, even if unwittingly, is still an infringer. However, the penalties for innocent infringement are far milder than those for deliberately stealing someone’s work. Until the innocent infringer was notified that the work he had taken was registered with the copyright office (the precise language of the complaint), he could continue to publish. He might or might not have to turn over some or all of his profits or pay the lawful copyright holder a royalty. BUT “under no circumstances would he be required to compensate the copyright owner for damages.”

Damages! There is no limit on damages in a willful infringement suit. That, no doubt, is the reason why publishing is one of the most litigious areas of commerce. Most lawsuits settle out of court and the dollar amount is usually concealed by a confidentiality agreement. Alex Haley is said to have spent $10 million to defend his book Roots from infringement claims. Who knows if he caved in for no other reason than that he was being buried alive in legal fees.

Suddenly I remembered Adamo’s hands shaking when he was questioning me about the charts. I’d said it was entirely possible that our charts had been taken from the Budish book because I relied on the attribution. On hearing that, Adamo had seen his case go from deliberate infringement to innocent infringement and his expectation of huge damages and big bucks crumbled on the spot. No wonder his hands shook.

At some point after the depositions, we later learned, Budish’s camp had contacted Bromberg and Sunstein and floated the possibility of a settlement. And then we handed the big bucks right back to him. We continued to publish after we had been put on notice by the filing of a lawsuit that Budish was claiming copyright infringement.

As the months passed I could not stop going over and over the case, like a pathologist dissecting a hit and run victim. Something was still missing. At first I thought the Cleveland court had leaned on the scales of justice. The federal court there was said to be very political. I began studying legal books, wading through dense, obstruent language charged with Latin, looking for — what? I didn’t know.

Eventually I found what I was seeking. In law there is something called the doctrine of estoppel. Estoppel has three elements: representation, reliance, detriment. In plain English here’s what that means:
You told me something. That’s representation.
I believed you. That’s reliance.
I acted on that belief and harm was done. That’s detriment.

When those three conditions are met you are barred by the doctrine of estoppel from seeking damages from me for any injury arising out of that sequence of events.
So in this case I could say: You told me the charts were public property (representation.)
I believed you (reliance.)
I then used them and became an inadvertent infringer thereby, allegedly, damaging your market (detriment).
You are barred (estopped) from seeking damages from me because you set off the chain of events in the first place.

Stripped of the legalese, that concept struck me as simple common sense. Innocent infringement and estoppel, that should have been our defense, not fair use. But it wasn’t, because of what happened after we were sued.

Legally, the lawsuit had put us on notice. We should have stopped selling books right there and then until we found out what part of Budish’s book we were alleged to have infringed. The damages, if any, would have been limited to the number of books we had sold up to then, perhaps only a tiny fraction of our profits or none at all because the copyright notice was defective.
But we didn’t do that. We printed more books, and then more books, containing the charts after that notice, making us intentional infringers.

The fact that our intellectual property attorneys did not immediately tell us to stop selling books until we knew for certain where the problem was, the fact that we had been advised repeatedly that it was okay to print more books containing the charts even after it was clear that the charts were a problem, the fact that our lawyers themselves created even more problematical charts knowing we would be printing 100,000 new books, did not change the result: we were liable under the law.

Budish had claimed originality in twenty-six changes he made to eight public domain charts. The charts made up a scant three pages of a book almost two hundred pages long. For that he was to receive seven hundred and fifty thousand dollars.

Was there some kind of justice in all this that I was missing? How was society served by this particular test of copyright law?

Lawyers will tell you that the system worked because we were able to file another lawsuit to hold our attorneys accountable. We achieved a settlement, yes, but I was not comforted. The malpractice suit did not give back what was lost. No, it wasn’t a human life. But it was a piece of the American dream and, like a child victim of medical error, that amazingly successful first book died prematurely. And the price of the settlement was many more months of grief.

Like a cancer, a protracted lawsuit changes your life. It’s with you every minute. You wake up every morning and go to bed every night with the knowledge that there are well staffed law firms out there, full of highly paid, fiercely motivated specialists, trained in arcane procedures that you don’t understand, whose purpose it is to inflict maximum harm on you.

As with a devastating illness, I believe only those who have lived it can understand. If you’re resourceful, you find ways to cope. Remembering Marian, I learned to make a conscious effort to treasure every bit of warmth and light I could find amid the ashes.

But I was only in training; the worst was yet to come.

Chapter Five

Landing on my feet: After the the first lawsuit

How to Protect and Financial Planning Institute were dead. I had started a new imprint, Mt Ivy Press, that had published a couple of cookbooks, a couple of other non-blockbusters and a prurient but not hard-core tome, Gigolos — The Secret Lives of Men who Service Women, containing interviews with the real deals plying their amorous trade in Boston, New York, Washington D.C. and Florida.

The book was a glimpse into a hidden world that most people never even imagine. We got tremendous media coverage. The trash-talking daytime TV shows ate it up - we did seven or eight network shows, one after another. When my authors were unavailable to tape the show, I was interviewed, flanked by a couple of tanned California gigolos, by Leeza Gibbons.

The shows’ producers were invariably sweet young things right out of college with names like Mindy and Buffy, who hadn’t the faintest idea how to locate gigolos to appear as guests. It became my job to unearth the elusive creatures and convince them to appear on network TV. There was no dearth of subjects who liked the idea of having fifteen minutes of fame, but all had reservations about the effect of such publicity on their high-paying patrons. The compromise: to protect their anonymity and that of their customers, they would appear on air in shadow and/or disguise — appropriate enough for their chosen way of life.

We placed ads in the Triple-X-Rated Personals sections of alternative papers like The Boston Phoenix and The Village Voice: “Small publisher seeks male escorts to appear on TV to publicize book.” We were surprised at the many responses the ads elicited. The press kits we mailed out always contained a copy of the book. More often than not, the producer at the other end would call immediately to make arrangements for a show and to ask for additional copies because the staff was fighting to read it.

The term “gigolo” was coined by author Edna Ferber during the period when young men went off to fight in World War I and women went to the dance halls to find replacements. I learned some unexpected things from this project. For instance, most gigolos got into the business after being propositioned by a woman, a nice, respectable woman at that. The men typically were very candid, obviously enjoying the rare opportunity to speak freely about their secret lives. Unlike female prostitutes, the men consistently reported that they never felt exploited. They did not refer to their women as tricks or in any other demeaning language. On the contrary, they respected their clients, enjoyed their work, and were proud of themselves for doing their chosen activity well.

Surprisingly, they were not necessarily handsome; in fact, most were rather average. They were not necessarily hired for sex either; some were arm candy for women who needed escorts to important social events (particularly in Washington, DC, where insiders referred to them as “walkers.”) Some offered a dry shoulder to cry on, or a complete escape from reality or the fun and companionship that was missing from a marriage of necessity. Whatever the woman needed, they supplied. The gigolos came in all ages, from college kids to a widowed grandfather we encountered with a penile implant. He was supplementing his Social Security in Florida to the tune of $2,000 a week. Most of the men had at least a college education.

It was a fascinating project. After talking with scores of men I noticed many consistent similarities. Most surprising, all of them, with one or two exceptions, had been raised Catholic. Having myself been raised Catholic, I searched my memory for some clue as to why this was so. Out of my own experiences I was not able to come up with a theory.

Some years later when the clergy sex scandals became headline news in Boston, I made the connection between prior abuse and what could be seen as deviant behavior. The gigolos who had women friends in the sex trade (I met a couple of them) reported that the women in that business also were overwhelmingly Catholic.

Men I knew who heard about this project invariably asked, Where do I sign up? I always told them, You wouldn’t qualify. The gigolos’ chief virtue was that they understood that the sine qua non of the transaction was that the woman had complete control. Absolute and unequivocal power was the ingredient that woman would pay good money for, because it is rarer than diamonds. How often does a woman experience voluntarily conferred, not-to-be-challenged power in an intimate relationship with a man?

Sometimes the gigolo net would pull up an unexpected fish, like the time I got a call from a curious college professor who had seen the ad in The Phoenix. It was after-hours but I was working late in my home office when the phone rang. He was not a male escort, he said, he was a dominant for hire. Submissives, he explained were people who, for one reason or another — he didn’t elaborate — needed a certain degree of pain to achieve sexual gratification. He helped them experience pleasure.

Sensing my discomfort, he pronounced, somewhat donnishly, that S&M was just another form of sexual gratification, one that involved a very high degree of trust between the submissive and the dominant, more than in what is known as a “normal” relationship.

I listened spellbound, without judging, as I had been doing all along with the gigolos. This was another intimate transaction that was all about control, I realized. The professor seemed anxious to educate me in the ways of his chosen alternate lifestyle.

Because there was pain involved, he explained, it was absolutely necessary that the submissive trust his/her dominant. In an encounter that involved the submissive being in bondage there was always a prearranged signal between the two participants that meant “stop.” It was never the word “stop,” he explained, because the submissive might cry out, “Oh, no, please stop,” as part of the enactment. It had to be an out-of-context word like “albatross” or “department” which, as soon as it was invoked, was an inviolable signal to the dominant to desist.

The longer we talked the more I was able to understand the ritual aspect of the behavior and the less horrified I was. I asked about prior abuse, shame and guilt as factors in this lifestyle, but my instructor seemed uncomfortable with this line of questioning and I did not persist. At the end of our long conversation he invited me to a nightclub that was a watering hole for the sado-masochistic set, in the basement of a gay bar downtown.

I checked what he’d told me about where he worked; he was indeed a full professor at a local college. At the time, I was dating a man who was six-foot-three and over two hundred pounds, and he was willing to accompany me on this odd mission. My curiosity got the better of me.

On the appointed evening we approached an unmarked door in a purple-painted building in the Fenway area of Boston and entered a vestibule hellishly aglow with red light bulbs. A line of gay men in tight pants and shirts open to the waist was waiting to be admitted to the bar overhead. Pounding dance music poured down the stairs. Another flight of stairs led down to our destination from which no sound arose.

It was like lifting a rock and finding a space tunnel to another planet. I was Luke Skywalker entering the saloon full of Wookies and other peculiar space creatures in the movie Star Wars.

The basement, low-ceilinged with a long wooden central bar surrounded by high stools, resembled any other dim, crowded night spot except that the mingling crowd was dressed from head to toe in black leather. The men wore heavy boots, the women spike-heeled platform pumps and fishnet stockings. Most sported dog collars and wristbands gleaming with mean-looking metal studs. Some wore heavy belts from which dangled various whips, handcuffs and chains.

Our host had been watching for our arrival and met us promptly at the door. He was a small, gray-bearded, professorial man attired (incongruously, it seemed to me, as I studied his benign face) like the others. A gracious host, he began escorting us around the room, introducing us to people he thought would interest us. We met his submissive, a plump, pleasant woman who said she was an executive secretary in a major corporation. She was one of the few there dressed in street clothes but she, like our host, was greeted by the others as a regular.

If control was the currency, then black leather seemed to be the vocabulary of S&M, worn by both dominants and apparently also submissives. In one corner of the room, facing the wall, a young man with his black leather pants around his ankles was handcuffed to the metal pipes overhead. By agreement with law enforcement, our host explained, there was no frontal nudity here. This pas de deux was called a “scene.” The man was having his bare fanny lightly whipped by a dominatrix who wore geeky eyeglasses and, except for the leather and fishnets, looked like she might be a spinster librarian. They both seemed bored, as did the crowd milling around ignoring them.

Other than the whips, I wasn’t sure how the participants signaled their predilections to their opposites. We, of course, were not wearing black leather which, I guessed, indicated that we were probably outsiders. But when our host introduced me as the publisher of a book about male escorts, we were instantly accepted. The professor stayed nearby until it must have seemed that we were mingling more or less comfortably, then wandered off leaving us to carry on by ourselves.

I was surprised that I did not feel unsafe among this crowd of people who clearly had visited their dark side. If I closed my eyes to their manner of dress nothing seemed amiss. Men and women were circulating and chatting all around us. Overheard conversations concerned a recent Red Sox trade, the unpredictability of New England weather and other such routine social fodder. Just your usual Saturday night cocktail party, I thought. If liaisons were being established, it was all done discreetly, or at least while we were there.

At one point, I struck up a conversation with a young woman, elaborately outfitted in leather and whips, with the pretty, intelligent face of an upwardly mobile yuppie. She was a graphic designer by profession. We had something in common — that was also my field, I told her. She had been a dominatrix for five years.

How much did she charge for her services?
Three hundred dollars an hour.
Did she enjoy the work?
Yes, she found it interesting.
Where did she get her leather outfits?
Mail order.
Who were her clients?
All kinds. Bus drivers. Cops. Clergy.
Any one group most heavily represented?
Lawyers - by far.

I had briefly considered publishing a book about the S&M lifestyle but quickly changed my mind, in large part because of the surprising sales figures for Gigolos - the surprisingly low sales figures.

Gigolos was an easy book to publicize but a hard one to sell. The average woman wasn’t comfortable handing it openly to a clerk with her credit card in a bookstore.

Bad timing. In a few years the anonymity of the Internet and its huge marketing potential would have allowed the book to reach its full, fabulous potential.

While I was working on Gigolos I came across a criminal attorney who represented sex trade workers and also some of the more dangerous elements of society — murderers, rapists, and the like. He had been raised in an affluent family with all the advantages a child could have. He graduated from an Ivy League college and law school. My impression of him was that he was a very nice person. I was curious about how he had gotten into this particular area of the law and how he felt about his work.

“It’s a job that needs to be done,” he told me, “and it pays well.”

“But what about your clients? What happens when you’re representing someone you know is guilty? Like a murderer.”

“I do my best to get them acquitted.”

"Have you gotten any murderers off?” I asked, shocked.

“Oh, sure, lots, many,” he replied.

“But how do you sleep at night?”

“I sleep fine. I’m just doing the job the law requires of me.”

“So how do you get a murderer off?” I asked.

He began to recount the story of a client of his who was accused of murdering someone in a parking garage when I interrupted him.

“Did he do it?” I asked.

“That’s not a question for me to answer,” he replied. “That’s for the jury to decide.”

“But what was your personal belief about whether or not he did it?”

“Oh, I’m quite certain he did it. But I don’t have to worry about that. It’s the state’s job to make the case against him, beyond a reasonable doubt.”

“And with your help he went free?” I was shocked.

“Listen,” he said. “When the prosecution presented the evidence against him they had a witness who testified that he had seen a brawl between my client and the dead man on the sixth floor of the garage where the murder occurred. When the jury saw the crime scene photos taken by the police, plain as day behind the chalk outline of the body and the yellow crime scene tape you could see painted on a concrete column: FLOOR 8. The state didn’t do its job. They should physically have taken the witness to the crime scene so he could confirm the location of what he had seen. My client walked.”

“But he may murder somebody else,” I said, disturbed.

“He may indeed,” the lawyer replied. “But you have to remember one thing. If someday someone falsely accuses you of being a pedophile, and your family disowns you for disgracing them and your neighbors turn away because they’re afraid of you and your friends are revolted by you, where do you turn? These things happen all the time. The only person in the world who has to stand up and zealously defend you is your lawyer.”

Some days later I joined him for lunch with a couple of his clients, a gigolo and a Fourty-second Street peep show girl with a master’s degree in finance. He ordered his first double Scotch at 11:30. By the time we left the restaurant at 1:00, he had had three more.

Chapter Six

Slouching toward Bethlehem

While waiting for the next big book idea to come along I was doing pr for Jan Schlichtmann, the Boston lawyer. He was the subject of the bestseller, A Civil Action, which later became a movie starring John Travolta. The book documented his notorious ten-year legal battle on behalf of children who had sickened and died from toxins in the water in Woburn, Massachusetts.

When the decade-long lawsuit ended, Schlichtmann, bankrupt and dejected, had fled Boston. At the time, he was something of a laughing stock in the local legal community. Outgunned and out-financed by goliath corporations employing top Boston law firms, “Jan sacrificed himself on a mission from God,” according to Harley. In hiring me Schlichtmann was looking to rehabilitate his image in anticipation of the release of the book.

He wanted publicity for a difficult lawsuit he was handling involving a gruesome snow blower injury. The case was about to break wide open at a 9:00 am discovery hearing in Suffolk Superior Court. I alerted every media outlet in the area and they arrived in droves. One of the network morning TV shows sent a crew from New York. When the judge entered the courtroom he was visibly startled by the video cameras and rows of seats packed with reporters. “I had no idea this case had attracted so much interest,” he said bending into his microphone as he took the bench.

Schlichtmann stood at the attorneys’ table, his elegantly tailored back to the waiting press. His client had lost an arm because of a defect in a piece of equipment, he began. This product had been on the market for twelve years. He had been stymied in his efforts to learn whether there were other injuries that the company had known about while it continued to sell the machinery. He introduced into evidence the numerous discovery requests he had made over many months and described how the company had effectively blocked his efforts to obtain information about the product’s safety record. He set that pile of documents to one side of the table. Turning to a large brown carton in front of him he began slowly and deliberately, hypnotically, lifting out thick files, one by one, and setting them in a second pile. Every eye followed as a mountain of manila folders grew on the plaintiff’s table.

A whistle-blower had contacted him, Schlichtmann told the spellbound courtroom, and opened a crack in the wall of silence. Placing his hand on the towering stack of files he had been building in front of him, Schlichtmann stepped back and paused for effect. “These,” he said pointing to the huge pile, “are the injuries that the company swore under oath never happened. This one” — holding up a file — “a hand hacked off; this one” — another file — “a foot amputated; this one, an arm. All settled out of court, all with confidentiality agreements. And all while the company continued to sell this machine” — he held up a large photo of a piece of equipment painted blood red — “that it knew was causing these horrible, horrible injuries.” The entire courtroom had stopped breathing. It was a brilliant piece of lawyering.

During an idle conversation one day Jan asked if I could help his brother get a little press coverage to promote his small business making commemorative videos from family photos. When you undertake a new pr project you look for the hook that will make some publication want to do a story on your client. In this case the quickest way to get at the hook was to ask a question.

“What’s the most unusual video you ever made?” brought the answer, “A two-and-a-half hour memorial for this lady’s dead dog.”

Well, who knew? Perhaps dog lovers everywhere were clambering to make photo videos of their departed pets. Pet magazines might love the story. I got the dog lady’s name and made a phone call.
I met Misha Defonseca with her husband, Maurice, in a restaurant in Sherbourne, a suburb west of Boston. Misha was a short, plump woman, somewhere in her sixties, with pixie-cut platinum blond hair and icy blue eyes that glittered with extraordinary intensity. She wore a dress patterned with leopard spots and heavy Native American silver jewelry. Her eyes were rimmed with startling yellow-green liner. Long glue-on nails, white, tipped her fingers like claws.

She began speaking as soon as we were seated. Her English was heavily French-inflected but she talked rapidly and gave the impression of complete conviction. She made the video, she said, in memory of her dog, Jimmy, (pronounced GEE-mee) because of her love of animals (an-NEE-mahls) and to console herself. She loved Jimmy more than any human, she said, and she had nothing to live for when he died. I wondered how her husband felt hearing this.

She was a Holocaust survivor who had found kindness among animals, she continued. Man was capable of terrible cruelty but animals had been her truest friends. She made a habit of looking you right in the eye with a fierce concentration as she spoke.

Her husband listened to all of this with keen interest. He seemed shy, rarely making eye contact. He was quiet except for times when his wife’s English was insufficient to convey her thoughts. Then he would softly ask her to explain to him in French what she wanted to say and would translate. The story that followed was amazing.

At the age of seven she was living with her parents in Brussels. It was the time of the Holocaust. Her father was in the Resistance and her family was hiding out under a false name. She was never told her true name because it was Jewish, but being blond and blue-eyed she could “pass.” She was picked up at school one afternoon by a stranger who told her that parents had been arrested by the Nazis. She was placed in a foster home but she escaped and set out to search for them. She walked for five years across the European theatre of war, often hiding in the forest. Most astonishing, she said she had been befriended by dogs, and sometimes by wolves, along her journey.

What an incredible tale! That’s a book! I thought. I told her that I had a small publishing company. I asked if she’d ever considered writing about her wartime experiences. She said she had not spoken of her past until recently, that it was too painful, but she had started speaking to bear witness to the horrors committed by the Nazis. We left the subject of a book open for further discussion and said goodbye.

With the media flurry over Gigolos, Mt Ivy had signed on with Palmer & Dodge for the representation of that one title and translation rights had been sold in Iceland, of all places. One of the inducements offered for us to sign was that P&D’s agents were also lawyers, “two for the price of one,” Ike boasted. (The chic literary boutique known as the Palmer & Dodge Agency was part of the Palmer & Dodge law firm and was headed by Ike Williams, whom you will recall I briefly introduced to you earlier.)

After my meeting with Misha I called Elaine Rogers, an agent at Palmer & Dodge, and described what we had discussed. “Do you believe she really was befriended by wolves?” she asked, incredulously. “I have no idea, but anything’s possible, I guess,” I replied.

Elaine was blondish, attractive and WASPy. She might have shopped at Talbots. She was married to a doctor and living in the posh horse country north of Boston. (There are actually polo grounds in her area.) She seemed always to be darting off to Los Angeles and Frankfurt on Palmer & Dodge business. An animal lover, she was excited by the wolf aspect of the story.

I continued to meet with Misha to discuss the possibility of a book. On several occasions she invited me for lunch at her home in Millis. Her house was like nothing I’d ever seen. She had depictions of animals in every form displayed on every surface in every room. Stuffed animal toys of every species sat on shelves and chairs and in corners and a stuffed real cobra, its head reared to strike, held a place of honor in the middle of the living room floor. There were paintings of animals, photos of animals, figurines of animals, throw pillows of fake animal fur. There were bears, lions, tigers, dogs, cats, birds, reptiles - if it was a species on this planet, it was probably there in some form.

She also had a live dog and numerous cats that all were treated like spoiled children. Her fenced back yard was cluttered with animal statuary, bird baths and bird feeders, squirrel feeders with dried corn and hummingbird feeders with sugar water. She grew towering sunflowers for the birds and squirrels and put out purchased dried corn for the deer. A band of huge raccoons ate cat food and leftovers from her table from a bowl outside her kitchen window.

She frequently contrasted the purity of animals with the wickedness of humans. One of her favorite expressions was: “If I was in a sinking boat with a dog and a human I would save the dog and throw the human overboard.”

As we contemplated how the book would come together, I was concerned about Misha’s English, although Maurice was always at hand to translate. At one point I asked if she would feel more comfortable with a French-speaking ghostwriter and she said she would. For a time I thought we had someone who would help her but problems over terms in a collaboration agreement proved insurmountable. I continued to report back to Palmer & Dodge on the progress of plans for a book.

My best friend, Vera Lee, was also my next-door neighbor of twenty years. We saw each other or spoke on the phone almost every day. She had listened patiently for hours as I wailed and obsessed endlessly as my marriage collapsed. Her advice: never love anyone more than they love you.

A retired French professor, Vera was eighteen years my senior. She was a bright and flirty conversationalist, a gracious hostess, intelligent, and fun. Friends of mine who met her always commented that she was “charming.” I admired her tremendously. She was my “Auntie Mame.” Whenever I wrote her a note I always signed it, Love, Jane.

I think she considered me an asset, too. She liked to show me off to her friends. We were the glamorous young couple — handsome, rock musician husband, vivacious, bright wife — in the mansion next door. She lived by herself on the other side of a common driveway in a cozy brick cottage that had been the gatekeeper’s quarters.

At the time we bought the big house, we were impecunious hippies who had acquired a bit of extra capital through a fluke business opportunity. When we moved in, all our worldly possessions fit in half the living room. Our friends thought we were crazy. In that era those looming, grand Victorians were called white elephants; nobody wanted them – too much upkeep. Within a few short years they would regain their original status as trophy houses.

My life and Vera’s were densely intertwined. I knew her whole family and circle of friends and she knew mine. She was a necessary fixture at my family’s celebrations. She was always with us on Christmas Eve (she, being Jewish, didn’t celebrate with her family) when we opened presents. She often made her entrance waving a flaming red feather boa and toting a bag of gifts for everyone, my kids included. I would never consider having a party without Vera.

Her lively patter was the Vaseline (her word) that kept any affair running smoothly. To encourage the flow of conversation Vera enjoyed conducting parlor games. She would ask people to pick a single word to describe themselves. It could be one word only. She was surprised that I chose “sensible.” Why didn’t you pick something more flattering? she asked. I don’t remember the word she chose for herself.

Or she’d say: You can be rich or famous. One or the other, not both. Which do you choose? She chose famous. I chose rich. She was surprised. I don’t care to impress strangers, I said, I have two kids to send to college.

Another favorite party question was, “If you could push a magic button and someone, somewhere, would die and a million dollars would materialize in your bank account, and nobody would know what you did — would you do it?” She often played this one with new acquaintances. She was smiling brightly as she asked this rather macabre question and listened intently to the answer. In retrospect I now see this game as an ominous augur.

For all her social skills Vera would sometimes tell me she felt “invisible” to other people. Given her engaging personality I couldn’t understand why. She worried because she was not beautiful. She would say, “The only thing that matters is the face, the face, the face.” I would not understand, she said, because I was born with a beautiful face. Another time she told me I was smarter than any student she’d had in her teaching career. I was flattered by such high praise from someone I so admired.

Over a period of twenty years Vera and I developed the shared comforts that characterize a long friendship. We both enjoyed cooking. My recipe box was stuffed with her recipes and hers with mine. I always contributed the most dramatic hors d’oeuvres I could muster for her annual spring party. Many of my recipes are in the Boston College Cookbook she compiled while she was teaching there. I still have that slim yellow volume on my kitchen shelf.

After my marriage ended, if either of us was dateless on New Year’s Eve we went out for Chinese together. We were frequent practitioners of shop therapy. On my birthday every year we went to Allen Haskell’s nursery in New Bedford for me to pick out plants and then we’d have lunch at a favorite cafÈ and visit the factory outlets. Her birthday card to me always contained a clever poem.
Her garden and mine were on either side of the common driveway. She had glorious roses that I tried, unsuccessfully, to emulate. We would laugh and chat as we worked in our flowerbeds. When the sun was “over the armpit,” as she used to say, we went to my kitchen or hers for bourbon juleps made with fresh mint from her garden or mine.

Whenever we needed advice we turned first to each other. When it seemed my life had fallen apart after the Budish suit, it was Vera who encouraged me to get up and try again, even helping me choose the name for the new publishing company, Mt Ivy Press.

In a deposition taken shortly after she filed the lawsuit against me, Vera was asked, “Why did Jane choose you to write the book?” She answered, without a trace of irony, “Because she trusted me.”
I did ask her to help Misha write the book. She was reluctant. She recently had taken up ballroom dancing and didn’t want to take time away from an activity that gave her so much pleasure. I arranged for Vera and Misha to meet at my house. They chatted away for a while in French. But after Misha left, Vera’s reaction was disinterest. Misha had talked of virtually nothing else but animals and their superiority to humans. Vera didn’t care in the least for animals, had no pets of her own, and had to restrain herself from cringing in front of Misha when my dog greeted her.

After the meeting, Misha asked Vera for a writing sample that described her reaction to their meeting. Vera was annoyed. She told me she didn’t have time but she would scribble something and give it to me to clean up — which she did. Vera had penned something very typical of Vera. It was very flattering, but much different from what she had expressed to me. I passed it on to Misha. The flattery worked and Misha was impressed enough that she was willing to work with Vera.

I sensed Vera was just going through the motions. I knew she was concerned about taking time away from the new passion that was consuming increasingly more of her energy and interest. The book project just didn’t appeal to her, she said. I assured her I just needed her to help Misha get the basics of the story down in English. I would take over from there and work the material into a book.
I had a clear vision of the kind of book I wanted. The wolf angle was unique. I had done some research and learned that accounts of wolves adopting children were more than the stuff of legend; there were some relatively recent, though undocumented, accounts. It was fascinating material, whether true or not. Although the protagonist was a child I thought the story would appeal to adults. No doubt to humor me, Vera agreed to continue to meet with Misha, but she was making no commitments. That would soon change.

Vera went out several nights a week to nightspots that catered to a middle-aged ballroom dancing crowd. The day after a dance evening, sitting at her kitchen counter sipping wine, I would hear all about it. She would describe how many dances she’d danced, how other women had been wallflowers while she danced all night, how much she loved the attention. She was invited to compete in a tango contest and would need a tight, spangled dress with a high slit up one leg. Would I go shopping with her to find one? Of course I would — and I did.

She seemed positively high, as if on a self-induced narcotic, after her nights out. She said she’d finally found what she’d wanted all her life: popularity, and showed me an essay she’d written entitled “Look, Ma, I’m Popular!” I met only a couple of people from this new circle of friends. Mostly she saw them in the places where they danced. I worried that my friend would be hurt competing for attention with much younger women. At the time she was seventy-three.

One afternoon I got a call from Elaine. She had been out in California for a meeting about a film project with the folks at Disney Studios. In passing she’d mentioned the Misha story and they had been very interested. She needed a ten-page treatment within a week. What’s a treatment? I asked. It’s a brief synopsis of the story, Elaine replied.

Now Vera was interested. She quickly met with Misha to get the basics of the story and wrote the treatment within the tight deadline. Elaine sent it off to Hollywood.

Meanwhile Vera was dating men she met through her dancing. One, in particular, was much younger than she. She referred to him as “the Kid.” She confided that she felt she was in love, and that the feeling was reciprocated.

Although she had had long-term relationships, I had never heard Vera speak of loving any man. I just listened quietly, though I was concerned. One night she had stood in the middle of her bedroom floor, she told me, and let out a gut-wrenching cry of agony. She didn’t know why. She seemed surprised at herself.

Though I tried to keep an open mind, I was troubled. The Kid’s lime green car was frequently parked outside her door at all hours of the day and night. “I care about you,” I said at another time. “What you’ve been telling me lately makes me worry that you could be hurt.”

“A true friend offers support, not criticism,” she huffed, offended.

“A true friend tells the truth as she sees it,” I answered. “We’ve always done that with each other. You deflated my illusions about reconciling with my husband and you were right.”

“You’ve been involved with younger men,” she countered.

“Not that much younger,” I answered, “and it was a lark — for my ego. I never imagined it was love.”
This discussion was going nowhere. I didn’t recognize my dear friend. I felt a tiny stab of fear.

Chapter Seven

A few days after the treatment went off to California, Elaine called again with good news: Disney wanted a one-year option before the first chapter was even written! The money wasn’t great: $5,000 for the option, $7,500 to extend the option for an additional year, $50,000 purchase price. But it wasn’t the money that was important. It was the clout of the Disney brand associated with this product: Priceless! We were on our way with a great new book. Elaine sent me an expanded Palmer & Dodge agency agreement covering all of Mt Ivy’s earlier titles and all future titles. I was thrilled.

That Christmas I was invited to the Palmer & Dodge Agency Christmas party at a private club that Ike belonged to that seemed left over from pre-Revolutionary days. The Dickensian structure was reached by traversing a gloomy, cobblestone paved alley. Within its heavy wooden door, were low ceilings, huge fireplaces and murky paneled walls decorated with gilt-framed, smoke-darkened oil paintings. Ike escorted me around the room, introducing me to Palmer & Dodge’s stable of authors and other assorted, gray-suited, bow-tied Harvard alum types whose place in the crowd was undefined. I’m sure I stood out from the gloom. I wore a bright red pants suit, very high heels and lots of sparkly silver jewelry.

“This is our client, Jane Daniel,” Ike said as we made the rounds. “Her publishing company has a marvelous new book out this spring, a Holocaust memoire. Disney has the option. We have very high hopes for it.”

With Palmer & Dodge behind us, so did I.


Have you ever wondered how a book becomes a hit around the world? How does Harry Potter and the Sorcerer’s Stone get to the little Thai boy reading by oil lamp in a bamboo hut on stilts in a rain forest? Here’s how: Literary agents — like Palmer & Dodge.

There’s a far-flung network of literary agents moving books around the world. The good agents all know their own territory well and mostly they know each other. When a literary agency “markets” a work, they reach out to all their sub-agents in countries around the globe. For instance, an American literary agency representing a publisher with a novel to sell (technically, “to license”) might contact their Italian counterpart who represents Italian publishers seeking to acquire new, hot titles from the US. The two agents converse back and forth, strategizing about likely placements for the work. The American agent sends press clippings — generally author interviews and book reviews — to the sub-agent and reports on the book’s favorable reception in other markets. The Italian agent passes along the information to Italian publishers, hoping to generate a buzz about the lucrative prospects for an Italian translation.

Unlike How to Protect, which was an exclusively American subject, Misha had the possibility of generating international interest. The story line spanned most of Europe. We needed to reach those foreign markets. Palmer & Dodge was the leading literary agency in New England with experience in the European marketplace. It seemed a perfect fit. I believed we were in very good hands.

Misha and Vera each signed publishing agreements with Mt. Ivy. As part of the body of rights that are included in a copyright (more on this later), Mt Ivy acquired, as is customary, translation rights for all foreign languages, which included the authority to license those rights to foreign publishers. The blanket coverage comprised every language — from Korean to Croatian, Swahili to Sanskrit, every language, that is, except one: French.

The reason for the French language exception: Misha Defonseca’s native tongue was French and she wanted to write her own book in French. Misha’s lawyer, Howard Zaharoff, retyped the final agreement and this change was incorporated into the contract. Brett Kates, a lawyer I had come to know when I interviewed him in connection with another project, oversaw Mt Ivy’s contracts which were based on the version recommended by The Authors’ Guild, an advocacy association for professional writers. Brett and I never realized at the time that this one, seemingly innocent, departure from the standard would be the seed of a calamity.

Misha and Vera also hastily signed a collaboration agreement that had been prepared by Misha’s lawyer for an earlier co-author who didn’t work out. Vera began visiting Misha’s home, tape recorder and notepad in hand, to collect the story that would become a book.

Elaine’s assistant, Sandy Missakian, handled the routine business of preparing contracts and interfacing with clients. She also was a liaison with foreign publishers and oversaw the mailing of manuscripts to any and all who might be interested in acquiring this title. Like Elaine, she was a lawyer. Sandy was in her mid-twenties, dark and exotic looking, of Armenian descent, with a puppy-friendly nature. She stayed late at her desk every night, promptly returned missed phone calls, and was always willing to go the extra mile. I enjoyed working with her. Sandy answered her own phone, as did I. Although separated physically, we toiled, it seemed, side by side.

To provide Sandy with marketing materials I needed to generate some press clippings, so I called The Boston Globe and pitched the story to a feature writer. The resulting article was a long, flattering interview with Misha, complete with numerous photos, featuring Misha’s account of her childhood experiences with wolves. I sent the piece, plus some short bios from small community newspapers that Misha had generated, to Sandy who tucked them into packages with the raw manuscript being sent all over the world. Day after day Sandy and I worked together, oiling and adjusting the catapult that we hoped would launch this book to bestseller status.

Misha herself showed a flair for garnering publicity. She was quick to accept invitations to speak to groups who represented those she viewed as oppressed — animal rights or rescue organizations, Jewish groups, anything to do with Native Americans. Once she asked me to accompany her on a speaking engagement she had arranged at the women’s prison in nearby Framingham.

We arrived at the facility an hour before the scheduled talk. We had been told to leave all our jewelry at home and not to wear blue jeans. We were met by a staff member who checked our IDs, took our watches and purses, and asked us to roll up our sleeves. I was surprised to see that Misha’s arms were covered with small sores that, she explained to me later, she picked at repeatedly until they became raw. The official covered each wound carefully with a Band Aid. We were patted down and then directed through a metal detector before being escorted down a long cinderblock-lined passageway into a large room with a ring of folding chairs arranged in a semi-circle at a distance from two chairs placed side by side. We took our seats in the two chairs as a guard opened a door at the far side of the room and a line of women prisoners filed in. I watched as they quietly took seats around us. Except for their prison uniforms, almost every one of them looked like young mothers you might see at a PTA meeting.

Misha spoke eloquently for about an hour about the horrors of the Holocaust and the book she was working on as the prisoners sat spellbound. During the question and answer period that followed I was struck by how thoughtful and intelligent their comments were. “What a sad place,” I remarked to Misha as we pulled out of the parking lot. “There but for the grace of God…”


The book was coming together, bit by bit. After each visit Vera would call me to discuss what she had learned. Misha’s accounts of her encounters with wolves were incredible. Alone in the forest, hiding from the Nazis, a mother wolf had adopted her and cared for her as if she were a puppy.

“Unbelievable!” “Incredible!” we all said. Yet we all believed. But sometimes Vera reported that she suspected that Misha was making up the whole story. Perhaps too conveniently, she thought, Misha reported that she never knew her real name because her parents were in hiding from the Nazis and didn’t want her to know her given name. It was a Jewish name, Misha said, and her parents worried lest the child reveal her true identity.

I worried about how we would go about fact checking the story. Without a name to go on, how could the story be authenticated? Fact or fiction? How should Mt Ivy position the book? I had been reading all the Holocaust literature I could get my hands on. There had been hundreds, maybe thousands, of first-person accounts published in the half century since the end of The War, most relatively unknown tomes, all horrifying. The ones that stood out had a message of hope, such as The Diary of Ann Frank. Our book had a powerful message of hope. Maybe it could became a classic like that, I dreamed, and sell millions of copies over decades.

One recent offering that seemed to be on the way to becoming a classic was Fragments, by Binjamin Wilkomirski, a fractured, blurred account of the nightmarish experiences of a child caught in the Holocaust. The book received excellent reviews in this country and won the National Jewish Book Award. It was translated into a score of languages and received an enthusiastic reception abroad.

I thought Misha’s story compared favorably with Fragments. Childhood memories, such as those in Fragments, are always going to be less reliable, I thought. I made a decision. Fact checking, to whatever extent was possible, would come later. At worst, where the story couldn’t be authenticated, the reader was free to decide what was true and what was not.

But when I listened to Misha herself — so intense, so coherent, so convincing — skepticism fell away. My mistake was that I really wanted her story to be true. It represented a primal struggle between innocence and evil, a child and the Nazis, and the child won. We all wanted it to be true, and that colored our judgment and allowed us too easily to suspend disbelief.

Although I worked mostly with Sandy at Palmer & Dodge, it was always Elaine who called with good news. The whole staff at Disney was excited about the book, she reported. “They love the idea that it’s a true story.” She had more good news. Disney had already assigned a screenwriter to turn the book into a movie. It was going to be aired in the fall as the kick-off to a new series of made-for-TV Disney films.

Sandy followed up with the details. “Disney needs the life story rights,” she said. “Do you have them?”

“What are life story rights? Isn’t her life story already in the book?” I asked.

“Film companies sometimes want to purchase additional rights beyond the copyright in the case of a living person,” Sandy explained.

The publishing agreement that Misha had signed with Mt Ivy had nothing in it covering life story rights. Sandy drafted an addendum to the Mt Ivy contract granting Misha’s life story rights to Mt Ivy and Misha signed it. Mt Ivy included the life story rights in the film option it granted to Disney. Palmer & Dodge handled the legal paper work. Disney paid Misha $10,000 as a consultant. She was to meet with a screenwriter almost immediately to provide whatever assistance was needed.

Now the heat was on full blast. After conducting a series of interviews Vera began drafting chapters and giving them to me to review. I was disappointed with the results. At first I made suggestions in the margins: “Add more detail” or “Show, don’t tell,” but the problems persisted. I began rewriting whole sections and giving them back to her saying, “This is what I’m looking for.” At first Vera would rework the material to accommodate my requests, but it was not long before she began to balk. On pages that I had changed she would mark in the margin, “I like MY version better.” I would write back, “I don’t care whose version it is; I just want it to be good.”

Misha, too, was proving to be high-maintenance. She would call me at all hours to unload her financial problems. “I gonna lose my house,” she’d say. “I borrow from my neighbor this month but what I gonna do next month?” In every call I could hear her husband Maurice’s breathing as he listened in on their other phone.

Since there was no manuscript written at the time the publishing agreement was signed, there had been no advance. Though I was sympathetic, I felt helpless to do anything to alleviate her problems.
“What am I supposed to do? I’m not a bank,” I said to Sandy. “Would a big publisher be expected to be so involved in an author’s personal problems?”

I had to have a cover ready for our distributor right away so that we could list the book in the PGW Spring Catalog with a pub date in April, Holocaust remembrance month. With the movie projected to air just a few months after the release of the book we expected a big initial print run. Meanwhile, Elaine was headed to Frankfurt, Germany for the huge international book fair held there annually.

Misha had taken to calling me almost every day to report on the progress of the book and to complain that Vera was more interested in dancing than in writing. She wanted more of Vera’s time. She also was worried about her worsening financial situation. Her husband had been working for a company based in Europe. They apparently owed him money that they hadn’t paid and the Defonsecas were having trouble making their mortgage payments.

Vera and Misha also were having a logistical disagreement. Misha’s version of her journey on foot from Belgium to the Warsaw Ghetto in search of her parents began in 1941 when she was seven years old. Vera insisted that her departure had to have been earlier, in 1940, in order for her to reach the Warsaw Ghetto before it burned down in 1941.

I spoke with Vera about Misha’s concerns and she assured me that Misha was wrong about the starting date of her journey. She was annoyed at my questioning her judgment. When I repeated Misha’s concerns about her not being available to meet with her, Vera complained that she would give the project no more time than she had agreed to put in, which was enough to get a manuscript ready by the deadline in the collaboration agreement.

I spent hours going over drafts with her but no matter how tactful I tried to be, Vera resented my oversight. I could see there was no way that I would have layouts ready to go to the printer in time to have books printed and ready for PGW to ship to bookstores in March. I began reworking Vera’s chapters myself to get them ready for publication. Out of loyalty to her I tried to salvage as much of her text as I could. I had learned it was fruitless to ask her to make changes. She either argued or simply refused. But somehow I hoped that Vera would become again the supportive, caring friend I had known and trusted for twenty years. I think that’s called “magical thinking.” Or just denial.

Disney assigned a Hollywood screenwriter named Shirley Pierce to the project. She flew out and met with Misha to get a sense of the character she was going to be creating. But there was no finished manuscript for her to work from. As I rewrote Vera’s chapters, one after another, I faxed them to Shirley who incorporated them into her script. I was on the phone with her every day during this period.

The Disney deal endowed the project with Man O’ War legs. Again it was Elaine Rogers who called with the news: A big German publisher, Heyne Verlag, would pay $160,000 to publish the book in German. And the manuscript wasn’t even finished! This call was followed in short order by more calls with good news: the Japanese, Dutch and Italian translation rights were sold and there were more deals in the works.

It was early afternoon on a bright summer day. I was in my kitchen upstairs from my office when a call came in on the business line. I picked up the phone. It was Elaine. More good news, she said. We have a French publisher, Laffont, interested in the book. The head of the company was, like Misha, a Holocaust survivor.

“Sounds great,” I replied “but Mt Ivy doesn’t have the French rights. Misha is planning to write a book in French.”

“They don’t want a different book in French,” Elaine explained. “They want a translation of this book.”

“Mt Ivy never acquired the French rights from Misha,” I explained. “You need to go read the publishing agreement and then speak with Misha about the French offer.”

From this point on I was pretty much out of the loop; I got all my information about what was going on between Palmer & Dodge and my author second-hand. I learned from Sandy that Misha’s reaction to the news about the French publisher had been mixed.

Misha had spoken on the phone with the head of the French publishing company, Charles Ronsac and the two had hit it off. Misha called me after their conversation and reported that she had been impressed by M. Ronsac. She badly needed money so she was relieved that he had assured her of his interest in acquiring this book.

But she was not pleased with the way the offer had come about. On the one hand she wanted the deal, but on the other she didn’t want to pay a commission to Palmer & Dodge for bringing it to her. Palmer & Dodge was Mt Ivy’s agent, not Misha’s, and had inadvertently arranged a deal for a property that was owned not by their client, but by their client’s author whom they did not represent. In fact, under the circumstances, Palmer & Dodge was not entitled to a commission, but on this point they would not budge.

Misha called me again and was furious that she was expected to pay a commission on a deal she had not authorized. I understood her position. It was as if someone sold your car without your permission and then asked you for a commission on the sale. But Mt Ivy did not own those rights and I felt I needed to remain neutral. I relied too heavily on Palmer & Dodge to get caught in the middle of this dispute.

“I’m sorry,” I told Misha. “I’m not part of the French deal. I have no say in this. You have to work it out between yourselves.”

Over the next couple of weeks things got ugly. Sandy told me that Palmer & Dodge wanted Misha to sign an agency agreement covering this one deal. Misha refused and apparently tried to go around them and make her own deal with the French publisher to avoid Palmer & Dodge’s fifteen percent commission. Laffont, protecting their business relationships with their own French agent Michele Lapautre and with Palmer & Dodge, insisted that Misha pay a commission.

Misha called me and reported that Laffont had set a deadline for her acceptance after which their offer would be withdrawn. “They know I need money to pay my house,” she complained. “They think because I am desperate, they can push me around.” Again I told her I was out of the loop on this one. This dispute had become a tar baby that I didn’t want to get caught in — a worthy goal, but one that was not to be.

Shortly thereafter Sandy called me and told me that Palmer & Dodge had reduced their fee to ten percent and the deal was going through. Misha agreed to become a client of Palmer & Dodge in order to consummate the publishing deal with Laffont but she would never trust them again, or by extension, me. Vera, who had retained the French rights with Misha, went along with the arrangement and signed on as a client of Palmer & Dodge as well. No one ever asked me how I felt about the prospect that the law firm/literary agency that had been representing Mt Ivy for three years was now representing Mt Ivy’s problematical authors. It never occurred to me that I had a say in the matter.

Within a year the Laffont edition would make the bestseller list in France and Misha’s bank account would be receiving wired French royalties in increments of ten to thirty thousand dollars. But the troubles with the French book had only just begun.

While the difficulties with my authors continued, the marketing of the book was going extraordinarily well. I had used a speakers’ bureau to arrange engagements for Harley during the How to Protect era. It was a local company, American Program Bureau, that represented some pretty big celebrities. I called Harry Sandler who worked there as a booking agent and told him about Misha. He had been part of the music scene in Boston when I was married to a rock musician. He pitched the idea to his boss and in short order APB accepted Misha as a client. Misha was a complete unknown at the time; I took this as a vote of confidence in me based on my track record with How to Protect. Her starting fee would be $3,000 to $5,000 per engagement but they expected to increase the price over time. APB would promote her heavily with the numerous Jewish organizations to whom they regularly provided speakers, such as Henry Kissinger, for special events. Misha's photo appeared in their promotional brochure under the portrait of Ed Koch, former mayor of New York and across from Pulitzer Prize winner Doris Kearns Goodwin and Dave Barry, the popular syndicated humor columnist.

I was sitting with Harry one day in his office, discussing a booking he was working on for Misha in Fort Wayne, Indiana.

“Did I tell you my wife’s a publicist?” he asked suddenly. Shirley had worked for years in the music business, he said. The singer Al Green was among her former clients.

“I’ll drop you off a manuscript,“ I replied. “Take it home to her and if she likes it, tell her to call me.”

Shirley and I met in a Newton coffee shop a few days later. She loved the story, she said. It had touched her heart. She didn’t play hard-to-get; she really wanted to work on this project.

I recognized in Shirley just the qualities of enthusiasm and experience I was looking for. The book was in layouts at that point. The cover had been designed. PGW’S Spring Catalog was out and PGW reps were already selling to bookstores across the country. The final layouts would be going to the printer in a matter of days. We were looking at a publication date only a couple of months away. It was time to ramp up the publicity to give the book a powerful launch.

Despite the squabbling behind the scenes, the book had already begun to earn money. The Disney money had come in and I hand-delivered Misha’s share to her the very day we got the check (less their commission) from Palmer & Dodge, although the publishing agreement allowed us sixty days before payment was due. The German money was on the way and there was a brisk flow of advances in the pipeline from the additional pre-publication sales of foreign rights. But we still needed to spend carefully.

I had planned a big press party to launch the book. Shirley and I talked about who should be on the media list to receive invitations. The list we compiled was seven hundred names long and included every person we could think of within two hundred miles who could help the book: newspaper feature writers, book reviewers, magazine editors, TV news program directors, radio show hosts and their producers, local Jewish leaders, the Jewish press, freelance writers, people from Holocaust museums and Holocaust education programs, school curriculum developers, clergy — the list went on and on. Shirley already had begun cultivating the book editor of The Providence Journal and was working on his counterpart at The Boston Globe, David Mehegan.

I called on a designer to create a unique invitation. “These people get invitations all the time. It has to look slick and expensive,” I said to Shirley, “so they’ll want to come.” We printed up 800 two-color self-mailers with a picture of a wolf howling at the moon and a quote from the book on the inside.

Finding a location took a bit of work; function rooms were expensive. We finally settled on an art gallery that featured works by ghetto artists. The director liked the idea of getting exposure with the media through our efforts and gave us a good deal on the rental. Misha liked the “downtrodden” connection.

I chose interesting quotes from the book and had them blown up and mounted as posters that would sit on easels around the gallery. I ordered fresh spring flowers — red tulips, yellow daffodils, pink and white hyacinths, green ferns — to fill tall, wrought iron planters I had found at a flea market. These would sit atop round tables covered with red checked cloths I had found at TJ Maxx.

We planned to give every attendee a free book as part of their press kit. Cases of books arrived at my office from the printer the week before the big event and twenty cases were delivered to the gallery. More cases of red and white wine were stacked beside them. We recruited friends and relatives to tend bar.

I had had a small catering business when my kids were small and I planned to cater the event myself. I would shop and cook for a week for an estimated two hundred and fifty guests.

The one fly in the ointment was Vera. She had become increasingly and openly hostile. Misha reported to me that Vera had said to her that the direction I was taking the book was wrong. She now found the book to be “an embarrassment” to her. Misha, not being fluent in English, was unable to determine for herself whether Vera’s assessment was accurate or not and had become anxious about my guidance. When I confronted Vera she denied the remark. I was afraid to invite her lest she do something to spoil the evening for Misha.

The event was a huge success. We estimated that we had drawn well over two hundred guests. The book reviewer from the Providence Journal was there and Shirley was able to buttonhole him for a long conversation. He told her he had read the book and found it fascinating. He wondered whether the story were true. Shirly introduced him to Misha during the course of the evening and they spoke for some time. Later he told her he was hesitant to question the authenticity of the story because, “I felt as if I were in the presence of Mother Theresa.” Two weeks later a long feature article appeared under his byline that was picked up by the AP wire and republished all over the country.

David Mehegan, the Boston Globe’s book reviewer did not attend, in spite of many attempts by Shirley to contact him. Nearly three years later, after the end of the trial, I would learn that his absence was not an oversight on his part; he had his reasons.

Within a few months of the release of Mt Ivy’s book, the translated versions would be released abroad where it shot to the top of bestseller lists in France, Italy and Canada. In the US Shirley Sandler would score the ultimate coup a book could ever hope to achieve: Oprah Winfrey’s producer taped half a show with Misha at Wolf Hollow, a wolf sanctuary in Ipswich, Massachusetts, and we were given two tentative taping dates in Chicago with Oprah herself.

Somehow, I believed that the problems with my authors would be swept away on the wave of success that we had generated. That was not to be. In fact, that very success acted like blood in the water to the sharks.

A month after the book's publication, the nightmare began: On Frisoli and Frisoli letterhead, the letter stated: “Please be advised that this office represents Vera Lee… My client has been substantially damaged [and] estimates the fair market value of the damages so sustained to be the sum of $350,000. Demand is made upon you for a reasonable offer of settlement within 30 days.” This language is the opening salvo of a lawsuit.


© 2007 Jane Daniel • All rights reserved.

Chapter 12

I was the proverbial one-armed wallpaper hanger. My daughter, Liza, who had run the office for me when my first publishing company was booming, was now married with a baby, so she was rarely around. She was still the president of the second publishing company, Mt Ivy Press, Inc., my title was Publisher. She signed our contracts and she would come in and write checks to pay Mt Ivy’s bills, but just about everything else fell to me.

Besides writing the book itself, a necessity I had not anticipated, I was overseeing all the steps required to get the book ready to go to press. I wanted to go first class. No paper cover for this project; I wanted a hardcover with a full color dust jacket.

After doing some research I came across an illustrator who did pastels of children with lovely, luminous eyes and engaged him to produce our original cover art. The final drawing depicted the face of a little girl surrounded by wolf pups.

As the word-processed manuscript neared completion, I had the graphic designer pour it into page layouts. Because of the technology of the computer, these looked like typeset text but could be easily altered, if necessary, right up to the minute we went to press. Now I had something that looked more "finished" that could be used for promotional purposes.

I could see immediately that Misha had been warmly embraced by the Jewish community around her. She had recently connected with her Jewish roots for the first time and joined a temple. She had been speaking publicly about her Holocaust experiences to small groups. I met her rabbi and members of her congregation who all expressed wholehearted belief in her remarkable story. She said that she had just recently found the courage to speak her truth and relive the pain of her harrowing childhood fleeing the Nazis. I believed her story, too, but still there was the possibility that others might have doubts.

With this in mind, I knew impressive blurbs for the back cover would be crucial. No one I talked with doubted that she was a bona fide Holocaust survivor. However, her account of living among wolves had the potential to make her story questionable. I wanted to know if that piece of the story was credible so I sent the manuscript to Joni Soffron, Education Director of the North American Wolf Foundation. Joni and her husband ran a small sanctuary in Ipswich Massachusetts with a dozen or so full-blooded wolves. They gave lectures on weekends to educate the public and advocate for the protection of the species.

"Could it be possible that wolves would adopt a human child?" I asked her.

Joni said she had no doubt that it was possible, but very rare.

"The Romulus and Remus myth has captured our imaginations for centuries," she told me. "There are some more modern accounts, but they’re not well documented. "You have to remember," she went on, "humans established settlements in wolves’ habitats and hunted them to the point of extinction. European wolves learned thousands of years ago to steer clear of man. Those that didn’t, didn’t live to pass on their genes. People equate wolves with the mean ones in the Three Little Pigs tale and Little Red Riding Hood. We grow up thinking wolves are bad. But wolves are not aggressive toward humans. It’s just the opposite; wolves avoid humans."

"What about wolves and children?" I asked.

"Because they’re so wary there would no opportunity for a wolf to run across a human child," Joni answered. "Only under bizarre circumstances, such as a war, would a child be alone in the forest far away from protective adults. Wolves are social animals who take very good care of their young. Only the alpha pair breeds but the whole pack looks after the pups. There are virtually no documented accounts of a human being attacked by a wild wolf. And, yes, absolutely, it is possible that a small child might be accepted as a pup."

Joni’s blurb said: "Misha’s loving description of the true nature of wolves will dispel many myths and touch the soul of all who read it."

The next person I thought to ask for a blurb was Nobel laureate Elie Wiesel, perhaps the most famous name in Holocaust literature. As it happened, he was teaching at Boston University at the time. I called the main phone number at the school and got the direct number for his office.

"Does Mr. Wiesel give blurbs for books written about the Holocaust?" I asked his secretary.

He does, she replied but he was out of the country, at the time. "If you send me a manuscript, I can give it to him and he will be in touch with you if he feels he can offer some words about your project."

I packed up the page layouts and a color copy of the front cover and sent it off that day, hoping Elie Wiesel would get back to me before the book went to press. He did, about six weeks later. In a short note he said he had read the book and found it "very moving." Yeah! Those were just the words I’d hoped for.

One of the feature articles (not a book review) that I had placed in the Boston Globe had said the book contained "…the miraculous material from which fairy tales are woven." Not exactly an endorsement of the authenticity of the story but a good quote, and it went on the back cover, too.

Leonard Zakim, the Executive Director of the New England Anti-Defamation League, was a much beloved figure in the Jewish community. He was young, in his forties, and had been battling cancer for years. I had met him at some function or other and asked him if he would read the manuscript and give us a blurb. What came back was perfect: "A scary ‘must read’ for anyone interested in the Holocaust. Humans acted ‘like animals’ and animals acted ‘humanely.’ Her story is heartwarming and bone-tingling, all the more so for being true."

Lenny’s was the only review that explicitly endorsed the authenticity of Misha’s account.

Lenny died shortly after the book was published but his name lives on. Boston’s famous "Big Dig," the largest civil engineering project in the world at the time, produced its crown jewel in the form of a magnificent suspension bridge that is named in Lenny’s honor.

I got several other blurbs, one from an author in the Palmer & Dodge stable who had a book that was listed in the N.Y. Times Best Books of the Year, 1990, and another from a rabbi who was the chaplain at Brandeis

There was one more blurb that came back just before press time from a woman author of a Holocaust novel. Unexpectedly and at the last minute, she decided she didn’t want her name associated with this project. She gave as a reason reason that she questioned the truthfulness of Misha’s tale. Unfortunately, the cover was already printed so we had bright yellow stickers printed up that said, "AN INSTANT CLASSIC!" and placed them over her blurb.

I also sent off galleys to two Holocaust historians.

The first, Lawrence Langer taught history at my alma mater, Simmons College. I thought he might be willing to give an alum some feedback. He was away, too, but I mailed off the package with a cover letter explaining that we had a deadline and expressing appreciation for any thoughts he might care to share.

The second Holocaust historian to whom I mailed the book was Deborah Dwork, an associate professor at Yale. She had recently published a book of her own, Children with a Star: Jewish Youth in Nazi Europe. I had a cordial conversation with her about the project I was working on. I had read her book, I told her, and thought it was very interesting. She agreed to read the manuscript and said she’d get back to me.

I also sent a set of the galleys to Vera for her to review before we went to press.

Though it might be several weeks before I heard back from the historians, I could make final adjustments right up to press time so I wasn’t concerned. I now had a finished cover and pretty clean insides, what’s called in the industry "the galleys." The French and German publishers had been waiting impatiently to get the manuscript so they could start on their translations. I ran off more copies and mailed them abroad.

Sandy called me one afternoon to say the German publisher had contacted Palmer & Dodge to ask assistance in setting up an interview for Misha with a writer from Der Spiegal, Gemany’s most influential newspaper. He was flying to the U.S. in a week and the German publisher, Heyne Verlag, was worried. The Germans had the impression that the reporter was going to write an unfavorable article suggesting that the story was a hoax. The German book wasn’t published yet. I later realized the publisher had given the reporter a copy of the galleys in English that I’d recently sent them. The reporter, it turned out, spoke English fluently.

We met him at Misha’s home. Misha and Maurice had prepared a lovely lunch and we ate outside surrounded by many species of birds who also were dining at the assortment of feeders set up around the yard. The man was charming and friendly, but he asked questions, and then follow-up questions, and then follow-ups to follow-ups. I had the uncomfortable feeling that he was doubtful of Misha’s story. We said cordial goodbyes at the end of the afternoon and he went back to Germany. Several weeks later Sandy sent me a copy of the article from Der Spiegel. It was in German but someone had translated it. Heyne Verlag, it said, was soon to release a book about a Holocaust survivor who claimed to have lived with wolves. The story they were about to publish, according to the article, appeared to be a fake.

Misha was angry about the article but she was resigned. "Let them not believe if they want not believe. I don’t care what they think. I know the truth."

I had also sent a set of galleys to the French publisher, Laffont, and I soon learned that there were problems there, too. Just before the layouts were to go to the printer, they faxed a list of historical inaccuracies several pages long. Sandy called me to tell me that Charles Ronsac, the head of Laffont, had himself caught the errors and was concerned lest our book had already gone to press.

"Are they thinking of canceling their book?" I asked, worried.

"No, they’re rewriting those sections right now to make them accurate."

Thank heavens our book hadn’t been printed yet. I studied the list. The discrepancies and glaring errors were mostly related to known historical facts and dates.

For instance, Vera had written: "Germany’s surprise attack on Russia in December 1941..…"

Ronsac caught the error: "This is incorrect. It took place in June 1941. (December 1941 was the date of Japan’s surprise attack on Pearl harbor.)"

And Vera had written: "Belgium, Winter 1945 "The war was still going on…"

Ronsac noted the mistake: "Belgium had been liberated for a long time. Liberation of Brussels, September 3, 1944"

I called Misha. "Did Vera ever plot your path on a map of the countries you passed through?" I asked.

"No, she just write down like I tell her from my memory," Misha replied.

"Did she ever make a timeline of the events going on in those places, like particular battles, at the time you were passing through?" I asked.

"No, I just tell her from what I remember. Sometimes I not remember so good."

I was taken aback. This was the work of a scholar on whom I had relied completely? During the writing of the book Misha and Vera had quarreled over the date when her journey began. Vera insisted that it had to have begun a year earlier than Misha's memory of it. Out of unquestioning trust, I supported Vera. Now I wondered how many more inaccuracies were imbedded in the text.

"We have to make a map and a timeline," I said to Misha. I was again worried about meeting our deadlines. "I’ll go back and check the entire manuscript for discrepancies, not just the ones the French found," I said.

I then attempted to contact Vera. Vera had told me that she spent time at the library doing research but she had not provided me with any of her research materials or even the titles of books she’d used in her research. I got no response from my phone calls and knocks on her door. It appeared that Vera had gone away. I could see her car in the driveway between our houses and it hadn’t moved for days. I would not hear from her for a period of almost six weeks after I sent her the galleys.

I worked day and night on the manuscript and made all the revisions and corrections requested by Laffont with no help from Vera. I fact-checked every tiny detail. I researched the vegetation and animals of the regions Misha traveled as well as animal behavior, the foods available at relevant times and places, the clothing and scenery, farming and weather conditions and survival techniques applicable to extreme conditions. I read Holocaust survivors’ accounts, spoke with survivors themselves, obtained a tape of a TV program based on photos of the Warsaw ghetto and interviewed its producer. I read books on wolves and interviewed more people who worked directly with them.

Maurice agreed to get a map of Europe and trace Misha’s path. I began matching up the map of Misha’s journey with a historical time line. I was surprised at how much documentation I was able to find that coincided with Misha’s story. In one encyclopedia I found a drawing of the Warsaw Ghetto and the surrounding area that showed the Jewish cemetery, the train tracks running nearby, and the lake in which she bathed, exactly as she had described them to me.

Another book, an old, worn tome entitled They Fought Back, described a resistance fighter named Misha Gildenmann. He had operated in the forests of the Ukraine around the time that Misha described meeting up with a camp of resistance fighters led by a man named Misha. (She said she never knew his last name.) I mailed her the book and didn’t hear back from her for almost two weeks. When I finally reached her, she told me she was speechless when she saw the book with a photo of the man whom she so admired. She expressed no interest in trying to contact him, however. Later I was to pursue that line of inquiry myself.

At first I was thrilled to discover all this corroboration. Then it occurred to me that if I so easily could find this information at my local library, Misha could do so as well. She could have used it to fabricate a very convincing story. However, Misha herself barely spoke English, let alone read it. But Maurice, who never left Misha's side during interviews, meetings, or anything connected with the book, was completely fluent, both in spoken and written English.

Everybody who knew of her story called it “incredible.” I heard the word over an over. As time went on I began to realize that the word "incredible" has contradictory meanings. On the one hand it means so extraordinary as to seem (but not to be) impossible; on the other it means not to be believed. Was it possible that people used that word, consciously or not, to hedge their belief in the veracity of the story without seeming to do so? After all, what greater injustice could one inflict upon a Holocaust survivor who bares her soul to bear witness than to disbelieve her?

Misha insisted that her story was the absolute, literal truth. I once asked her if she had ever contacted Yad Vashem, the organization in Israel that maintains a database of over three million victims of the Holocaust. She answered that she didn’t know her family name and thus had no way of searching the records. She only knew her mother was called "Gerusha" and her father was "Reuven". She knew her mother was a Russian Jew, her father a German Jew. But she didn’t know any last names. She was never told her surname, she insisted, because it would have identified her to the Nazis as Jewish. She was called only Mischke, which she later changed to Misha, she said, in honor of the resistance fighter.

She also said she didn’t know her date or place of birth but she "had the impression" that she was seven years old in 1941. After her parents were arrested by the Nazis, she was placed with a family that gave her the name Monique Dewael, which she continued to use after the War for lack of her true name. She said she went to "town hall" to try to research her name but was unsuccessful. In the early 1960s, she had a son by a previous marriage, she said. His surname was Levy.

The absence of any surnames was an insurmountable obstacle to conclusively documenting her story. But that didn’t make it untrue, I thought. Surely in the chaos of the Holocaust many people’s identities were lost. Charles Ronsac, himself a Holocaust survivor, had accepted Misha’s story and gone ahead with publication of the French book as an authentic account. Most of the people who met Misha were persuaded by her charisma and the sheer force of her personality alone.

I didn’t know what to believe. Did she live with wolves? Or were they just big dogs that seemed like wolves to a young child? Did she see and experience all the things she recounted or did she only hear about them second-hand and incorporate them seamlessly into her own memories. What was true? What was not? My truth was that I had no idea what the truth was.