Several publishers have asked me to sign contracts under which I would be responsible for "any and all claims (including reasonable counsel fees) arising out of or resulting from the breach or claimed breach" of the representations and warranties in the contract. This wording is broad enough that if someone sends a letter complaining that he or she had been unfairly criticized, the publisher could hire a $300-per-hour lawyer, the lawyer could spend several hours investigating and drafting a response, and the writer could receive a bill for several thousand dollars. Even worse, if someone files a nuisance suit, the publisher could settle the suit for any amount of money without even notifying the writer, who could get stuck for the bill.
The solution to this problem, readily accepted by my publishers, was to substitute the following clause:
Author shall indemnify Publisher from any loss or damage occasioned by any such claim made against Publisher which is sustainable in court and constitutes a breach of any of Author's representations. If any claim is made, Author shall be notified immediately and shall have a right to participate in any response or legal defense at Author's expense. Author shall not be responsible for the Publisher's costs in responding to frivolous claims.
Stephen Barrett, M.D.
Allentown, PA
October 4, 1995