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Legal experts: Saying Erin Andrews benefited from peephole video was a bad defense

(Washington Post illustration; Associated Press)

Erin Andrews was awarded $55 million from the jury Monday in the hotel peeping lawsuit involving the sportscaster. But a line of questioning last week by the defense in the highly publicized suit drew the ire of both the public and the media — specifically, the defense lawyers’ claim that Andrews’s career benefited from the Internet exposure of the nude video shot without her knowledge or consent.

Here are the particular questions posed to Andrews by the defense’s Marc Dedman, part of the legal team representing the Nashville Marriott at Vanderbilt University ownership group, per the New York Daily News:

“With respect to your career…when you found out about this in July 2009, you were working for ESPN, right?”…
“You got a second contract with ESPN, right? And it was a better contract than you had the first time, right?” Dedman asked. “After that you got a contract with Fox Sports, right? And that was a better contract than you had with your second contract with ESPN, right?”…
“Your income has gone up substantially since this occurred,” Dedman finally said, to an objection by Andrews’ lawyers.

In the subsequent days, media reports referred to the questions as “ghoulish,” “ruthless,” “shameful,”pointed” and “heartless…pretty gross” with the criticism aimed at the defense stating that, at best, it was an attempt to show the incident had not harmed Andrews’s livelihood and, at worst, a thinly veiled accusation that the incident possibly assisted Andrews in reaching her current level of professional success.

The Erin Andrews verdict: It’s not about the $55 million

Both law professors and practicing lawyers that The Post contacted agree that Dedman and the legal team were mistaken in their attempts to undermine the Andrews camp’s asking price, which was reportedly $75 million.

“In a case that is all about a demeaning act, it is probably a very bad idea to demean the plaintiff,” said Justin Dillon, a partner at the D.C.-based Kaiser, LeGrand & Dillon PLLC.

Defense in Erin Andrews lawsuit says peephole video was good for her career

Sports broadcaster Erin Andrews tearfully told a jury on Feb. 29 about the shock and humiliation she experienced after a stalker posted a nude video of her. (Video: Reuters)

While the defense may not have set out to demean Andrews, this was what occurred after Dedman’s team disregarded her emotional state and insinuated that she ultimately profited from the unfortunate affair, multiple legal experts said.

None of the legal experts contacted supported the defense’s actions.

The lack of support came as a result of two distinct features of the trial: the presence of a jury and the assumption made by the defense that the incident may have benefited Andrews in the long run.

The decision to make the argument at all, let alone in front of a jury, was criticized by Dillon. He said attacking Andrews was poor practice if the defense was aiming to reduce the damages. Dillon added the defense could have made that argument at the end of the trial in front of the judge and not the jury, though that is still a move he would advise against given the circumstances.

Dillon told The Post on Wednesday that the line of questioning was a result of both poor planning and a lack of awareness, as the jury was likely to be very sympathetic toward the victim in this case.

He also condemned the defense’s attempt at saying Andrews’s recent success was due in part to a convicted stalker secretly and illegally filming her and uploading the video to the Internet, contending that making the argument at all was insulting to Andrews and not one that he sees often in a courtroom.

“Is it common to make an argument that a woman who went through something that every person in the world would realize is traumatic and demeaning and try to say somehow that she benefited?” Dillon said. “No, I would say that is an uncommon argument to make and I don’t think it’s a very smart one.”

Dillon was not alone in his thinking, adding that he crowd-sourced the question to a group of lawyers at a San Diego law conference he was attending at the time prior to speaking on the phone with The Post. Everyone he spoke to agreed the questioning was a major misstep.

“There were seven lawyers at the table and I said, ‘Does anyone think that was a good argument?’ These are all trial lawyers. They were like, ‘Oh my god, no. It’s a terrible argument,’ ” Dillon said.

Could the Erin Andrews video saga have been prevented by TMZ?

Two legal experts — George Rutherglen, professor at the University of Virginia School of Law, and Duke law professor Katharine Bartlett — both agreed with Dillon that the controversial questions seemed to be aimed at eventually lowering the $75 million price tag.

Talking about money as it relates to sexual-assault cases is a common problem for defense lawyers, according to Margaret Drew, associate professor at the University of Massachusetts School of Law.

Drew told The Post via email that the reason defense lawyers can struggle to strike the right balance between being emotional, logical and effective in these cases is because victims of sexual assault are not often harmed financially, but rather emotionally and psychologically. This makes the practice of questioning whether Andrews benefited from the incident appear as callous to a sympathetic jury.

“In Ms. Andrews’s case, public humiliation would be a factor contributing to the harm she has suffered,” Drew said. “All to say that when Mr. Dedman went down the road of inquiring as to Ms. Andrews’s loss of work-related income, advocates perceived this as his ignoring the truly critical components of harm that sexual assault survivors suffer.”

Based off the explanations afforded by the lawyers and law professors, the major mistake the defense made was believing that they should question Andrews about her finances in front of a jury and international audience watching on a live stream. In doing so, they created an aggressive atmosphere that placed Andrews in their cross-hairs, experts said, and indirectly may have claimed the TV personality is overstepping and that her legal team is being greedy in asking for $75 million in damages. 

“Many sexual assault survivors do not suffer a loss of income.  Harm comes in other ways,” Drew said. “The emotional damage, including fear, post-traumatic stress, anxiety and depression can evidence themselves in other ways, such as abrupt change in social activity or nightmares.”

Even if the hotel was not liable for the incident, the defense will be perceived as one attempting to further cause distress to a public figure that has been abused by a stalker. While the amount may be whittled down in future negotiations, as Dillon noted, the perception and reality that Dedman and his team crossed a line will seemingly persist, in the minds of the jury, public and media.