The Disturbing Defense That Re-Victimized Erin Andrews During Her Civil Trial (Guest Column)
As the $75 million civil suit brought by the sportscaster produced tears and Twitter outrage, a legal analyst with sports and entertainment industry clients (whose tweets about the trial went viral this week) comes down hard on the defense tactics: “One of the worst legal strategies I’ve ever seen.”
Exavier Pope is a sports legal analyst based in Chicago. He is the founder and principal of a sports, entertainment and personal-injury law firm, and before that he worked in the legal department of numerous Hollywood companies. He can be followed on Twitter at @exavierpope.
By now, many people have watched video of sportscaster Erin Andrews crying on the witness stand during the civil trial taking place in Nashville. Andrews’ cross-examination on Monday brought to the surface much of what seems outrageous in her whole ordeal, which began six and a half years ago when a stalker filmed her in a hotel room and put the footage online.
Andrews is suing that man, Michael David Barrett, as well as the franchise owners of the Nashville Marriott at Vanderbilt University West End Hotel Partners and Windsor Capital Group, who manages the hotel.
Andrews’ legal team is arguing that the two hotel companies should share the blame for a stalker taking nude videos of the TV host and posting them on the Internet. (Marriott International, the franchisor, had been a prior defendant in the case and was only recently dismissed.)
After asking Andrews about her first and second contracts at ESPN, and her contract with Fox Sports, the Nashville hotel’s defense attorney, Marc Dedman, then asked about her endorsements with Reebok, Degree deodorant, Mountain Dew and Victoria's Secret. I thought the suggestion was clear: Andrews had thrived since (and perhaps because) a stranger had filmed her nude. Andrews, facing the suggestion that her invasion of privacy had been for sale, broke down.
The defense asked the court for recess. The scene was a culmination of everything this trial is about: women being subjected to being stalked and harassed by men, and then being treated like they have a grand ole time profiting from it.
Testimony given in that Nashville courtroom offer new details into the ordeal that Andrews has been through.
Andrews testified she had been in Nashville on assignment by her then-employer ESPN to cover a college football game and checked into room 1051.
Then on Sept. 4, 2008, Barrett, now 54, crash-landed at the Nashville Marriott at Vanderbilt University. He arrived with the sole intent of stalking Andrews, recording her with his cell phone and selling the video to the highest bidder. According to Barrett’s own testimony, he snuck to a house phone inside of the hotel restaurant, dialed the hotel’s operator and plainly asked, “Can I have Erin Andrews' room?” With no hesitation, the operator connected Barrett. Once connected, the caller ID would reveal Andrews' room number.
Barrett then slithered his way up to the tenth floor to scope out his target. On that visit, Barrett would learn from housekeeping that a guest had just checked out of the room next door, room 1049.
Barrett would later testify about his heinous act: “I took [her door’s] peephole out, altered it, put it back in and left shortly after. I used a hacksaw to cut off the threads, so it was basically a plug, and put it back in. I went back to the room, and, unfortunately for both of us, I could hear that the shower was on in her room when I walked by. I waited until the shower went off. Then I pulled out the plug [on her door] and waited for the opportunity. I waited for a matter of 10 seconds. I waited for her to be visible.”
Barrett would secretly record Erin Andrews nude for four and a half minutes.
After an unsuccessful attempt to sell the video to TMZ, on July 16, 2009, Barrett posted the video on the website NSFW POA. According to a computer-science expert proffered by Andrews’ legal team at the civil trial, the unceremoniously leaked video was viewed an astounding 16.8 million times.
Andrews’ father would go on to testify that his daughter Erin vomited before reluctantly agreeing to view the videos with the FBI to help identify the person who captured them.
On Oct. 2, 2009, Barrett was arrested. He eventually plead guilty to interstate stalking and was sentenced to 30 months in jail for his heinous deed.
The damage, even beyond his crime, was already done.
According to Andrews’ testimony, “everybody” thought she created and leaked the video as a publicity stunt. “The front page of The New York Post said ‘ESPN Scandal.’”
And Andrews alleges that speculation of scandal before Barrett’s arrest prompted her then-employer ESPN to take the maneuver of damage control to protect its Disney-owned brand. According to Andrews, her bosses at ESPN told her, “Before you go back on air for college football, we need you to give a sit-down interview.”
Compounding the trauma of being a victim of stalking by a then-unknown predator yet to be apprehended, Andrews faced the prospect of having to explain her harrowing ordeal in all of its sordid details in exchange for getting her job back.
Andrews alleged it was strongly suggested by ESPN to go on Good Morning America, on sister-network ABC. Instead, Andrews chose The Oprah Winfrey Show.
Andrews would testify about her Oprah interview: “We went, I wanted nothing to do with it. I was in the office, or her green room, and I was sitting there and I was just bawling at my parents. ‘It’s Oprah Winfrey, how do you not want to see her?’ And I was just freaking out, and I just said, ‘I don’t want to do this, I don’t want to do this. I just want to go back to college football. I don’t want to talk about what happened to me, why can’t I just be normal? Like, why can’t I go back?’"
Andrews continued: “I think her producer had heard me crying, and all of a sudden, in walked Oprah, in her slippers and her butterfly eyelashes. I didn’t have time to get up out of the chair, and she walked over to me, and I was hysterical. And she said, ‘I’ve got you, you’re safe here. I’ll take care of you.’ And I did the interview.”
As a lawyer who has represented many sports and entertainment figures over the past decade, and as a legal analyst with over 200-plus appearances on mainstream media outlets, I was shocked by the cross-examination. On live television, I watched one of the worst legal strategies I’ve ever seen. It was absolutely unwise from both a PR and a legal standpoint for Nashville Marriott’s defense attorney to assert that Andrews profited from a leaked nude video she had no knowledge of creating or distributing.
Many have questioned the fact that Andrews is suing for $75 million in damages. Albeit seemingly coldhearted, hotel lawyers are ethically bound to advocate for their client and have to put forth this theory to lesson liability. In theory, that sounds plausible. In the courtroom, it was a disaster.
To prove a defense as incendiary as theirs, hotel lawyers should have introduced the theory in their opening argument, then offered up evidence (like reports or supporting documents) that directly connected Andrews' increase in endorsements, salaries and other benefits to the leaked video. I would also have expected to see them trot out an expert to testify to the veracity of the evidence offered. The defense did none of that.
I assume that Nashville Marriott at Vanderbilt Univerity’s lawyers took their approach on cross examination to put doubt in the jury’s mind as to how much Andrews had truly been harmed by Barrett’s criminal act and his accompanying illegally obtained viral video.
Trial lawyers will frequently throw Hail Marys in court via an improper form of questioning or seemingly distasteful antagonizing to seize an upper hand. Even if an objection is raised by opposing counsel and the judge tells the jury to strike what they’ve heard, human judgment often doesn’t allow a juror to truly strike what they’ve already heard.
An alternate strategy by Nashville Marriott’s lawyers could have consisted of scouring anything Andrews may have said in her own words on air, expressing how she may have benefited specifically from her ordeal, even if they were tenuous. At the very least, defendants could have questioned Andrews on her very own words to lesson the blow of direct victim shaming.
As a lawyer and on-air legal analyst, I thought the speculative, largely unsupported line of cross-examination seemed unwise. As a human being, I thought it made the hotel’s defendants look soulless and heartless to everyone who watched Andrews cry in court. Marriott International was released from the case because the judge determined they had no control over the security of a local hotel — a distinction I find troubling.
Trademark, service marks and trade dress are the hallmarks of intellectual property law. It’s original and continued purpose since the Roman Empire over a thousand years ago has been to ensure whoever uses a good knows its origin, and thus, expects a certain quality.
Whenever consumers go to a hotel chain with a certain brand name on it, they expect to see similar style furniture, decor, service, amenities, even smell. Whether it’s Spokane, D.C., Tampa, Chicago or Nashville, a consumer has a certain expectation when they see the name “Marriott” on it. Of course it’s not possible for every franchise to always match the precise expectations of the national brand, but one of the basic expectations of a hotel is to make people feel safe when they are sleeping there. If not, they won’t stay there. It’s that simple.
Eventually, Marriott put out a statement separating themselves from the incident, but how can they truly separate themselves? People don't book a room at a Marriott-franchised property thinking about the franchisee. They are thinking about the franchisor, Marriott.
To compound matters, as news outlet WSMV first reported, a representative for the owners group of the Nashville Marriott in this trial, BetaWest senior vice president Neal Peskind, played Andrews' viral video on his phone while at a Nashville restaurant with two friends.
Peskind had testified just days earlier that owners should not be responsible for Barrett’s actions or for giving out Andrews’ room number because hotel employees were hired by an independent contractor. After initially denying it happened, Peskind admitted to his friends actually playing the video, but he asked them to stop. Peskind also admitted his friends did not comply with his protest “as quickly as he had hoped.”
With all these very public mishaps, I think Marriott has to encourage West End Hotel Partners and Windsor Capital to settle this case. Andrews crying on the stand and a Nashville Marriott at Vanderbilt University executive admitting to watching Andrews' viral videos in public will have a long-lasting effect on Marriott International’s brand if she winds up winning the case.
What hasn’t been mentioned over the course of this trial is that Andrews has not only advocated for herself in court, she has advocated for all women. Andrews in 2011 teamed up Minnesota Democratic Senator Amy Klobuchar to push for a tough federal anti-stalking law.
Based on the many comments to my live-tweets about the trial, no matter what Andrews says on that stand, many sexist pigs think because Andrews is pretty and blonde, she is more cheerleader than sideline reporter. As such, this warped thinking continues, as if Andrews has not worked hard, has not paid her dues and deserves to be treated like this.
This is absolutely incorrect. Pretty and blonde does not equal unqualified. It means pretty and blonde. That’s it. There are no qualifiers.
Andrews' legal team. through testimony by her father and Andrews, offered evidence that Andrews, in spite of her personal battles, dived into her work. This testimony painted the picture that it wasn’t the video that helped Andrews — it was her remarkable resilience and hard work that advanced her career.
March 7 Headline updated to clarify that Andrews isn't currently working for ESPN.