Il Nuovo Postiglione - Galloway accuser could not foresee publishing-sector fallout, lawyer argues

VANCOUVER — A lawyer for the woman who accused author and former University of British Columbia professor Steven Galloway of sexual assault says his client could not have foreseen the “reckoning” that followed in the Canadian publishing industry. Galloway is suing the woman, whose name is protected under a publication ban, and other defendants, alleging they defamed him by publishing the unproven allegations online and elsewhere after they surfaced in November 2015.

Galloway has denied the allegations, and a former judge hired by the university to investigate found them to be unsubstantiated. The university fired Galloway, who has said the claims destroyed his career.

Arden Beddoes, who is representing Galloway’s accuser, known as A.B., said the fallout from the allegations “can’t all be put at the feet of our client.” Beddoes said in his opening statement in B.C. Supreme Court on Monday that the case involves various events and “distinct publications” between 2015 and 2018, but the court will have to determine what can be legally attributed to A.B.

“There’s no dispute from us that allegations of rape and sexual assault are serious, and there’s no dispute that Mr. Galloway has described profound personal or professional impacts upon him,” Beddoes said. “This became a big deal … and everything that happened after November 2015, it’s very complex, but we also say it is not proper and we’ll take the court through why we say that just can’t all be put at the feet of our client.”

Beddoes said the woman could not have foreseen UBC’s handling of the situation and its investigation and public statements about Galloway, “let alone that it would become this extensive reckoning and controversy within the Canadian literary community.” The court learned earlier this month that A.B. was no longer asserting in her defence that Galloway assaulted her, rather that she reported he had done so. The woman is not testifying in the case, citing mental health struggles.

Galloway’s lawyers closed their case Monday after weeks of testimony detailing the impacts on the bestselling author’s career and personal life after being accused and later fired by UBC. His lawsuit was originally filed in 2018, alleging statements by A.B. and others on Twitter and elsewhere were defamatory, and he is seeking general and special damages.

A.B. is a former creative writing student who is years older than Galloway, and the court heard they had an extramarital affair for approximately two years over a decade ago. The court heard earlier on Monday from the last witness called by Galloway, a publishing industry expert who produced a report about Galloway’s potential earnings as an author, had his career not been derailed.

Kevin Hanson stated that enthusiasm for Galloway’s novel “The Cellist of Sarajevo” was remarkable and rare, putting the author and former University of British Columbia creative writing chair in a “unique class.” While sales of books published after such breakout successes often fall off, the industry veteran testified that he believed sexual assault allegations against Galloway in 2015 affected the performance of the author’s next novel.

Hanson recalled how “The Cellist of Sarajevo” was one of the “hot books” at the London Book Fair. “From what I gather there were heated auctions in many territories for the rights to that book,” he told the court.

Hanson said he believed the alleged defamations resulted in the diminished performance of Galloway’s subsequent book, “The Confabulist.” The court has heard that when the allegations surfaced in November 2015, Penguin Random House Canada shelved the paperback run of “The Confabulist.”

Several people originally named as defendants in Galloway’s lawsuit have settled with him and offered public apologies. Galloway testified earlier in the trial that he could no longer write and now sells boats for a living.

Hanson said publishers determine how much to pay authors based on several factors, and his report sought to forecast Galloway’s earnings from 2016 until his 70th birthday. Beddoes questioned Hanson about the report and its use of assumptions and comparisons to project earnings, including a comparison with Canadian author Miriam Toews, who also saw success abroad with her novel “A Complicated Kindness.”

“All I’m doing is looking at the numbers,” Hanson told the court under cross-examination. “But if you’re asking me, do I think that there is an impact of the defamations on the performance of ‘The Confabulist,’ I would say yes.” Questioning Hanson, Beddoes said “The Confabulist,” Galloway’s fourth book, hadn’t performed as well as the author’s previous hit novel.

“The Cellist of Sarajevo” had earned over $1 million in royalties, Beddoes said, while Galloway’s first two books and “The Confabulist” earned tens of thousands. The defence lawyer said Galloway was “one for four” with successful books.

But Hanson’s report estimated the author’s potential earnings for six more books would range between over $700,000 and $2 million each, he said. “Your projection then showed that he would go after that six for six,” Beddoes said.

Hanson said it was “fairly typical” for writers not to find success until their third book. “It takes them a few novels to be discovered and understood and for them to find their strengths. That’s a relatively common thing,” he told the court, while noting some first-time authors do see success at the outset.

“Third novels really establish the preeminence of the writer’s capabilities and that was certainly shown in how publishers around the world, not just Random House of Canada, interpreted what was happening. Because collectively, they saw something completely new,” he said of Galloway’s “The Cellist of Sarajevo.” Justice Neena Sharma briefly excused Hanson, who was testifying by video, and told Beddoes his questions were improperly worded.

“His answer is basically saying no, I don’t agree with you. He wasn’t one for four,” Sharma said. “He didn’t agree with the underlying assumption in your question.” Sharma said the question implied that a book earning tens of thousands of dollars in royalties was a “failure,” a characterization the expert witness refuted.

“I would mean no disrespect to Canadian authors who have published books. I know some personally myself and I consider them very successful,” Beddoes said. “What I’m concerned about is the quantification of damages.”

Beddoes said “The Confabulist” didn’t live up to expectations and subsequent novels may also have underperformed. “In terms of the numbers, it totally did not perform, and the question is why?” Hanson said. “There’s an infinity of possibilities, obviously.”

Hanson said the report was based on his experience with how writers across a number of genres perform. “The numbers that I’m projecting for Mr. Galloway are not out of (the) question. It could be high, it could be low, but they’re a reasonable projection,” Hanson said.

Hanson was excused after Beddoes finished his cross-examination and Galloway’s lawyer, Daniel Burnett, said his client’s case was closed. The trial continues in B.C. Supreme Court in Vancouver on Tuesday.

F.S.Ferrari--INP