By Bob Latham
Like everyone else in the free world, for the last two weeks I have followed the Tiger Woods saga, alternating between chuckling at the gallows humor pouring into my inbox (we are a creative culture, aren’t we?), feeling empathy towards the human carnage that his activities leave, and feeling disappointment at the disconnect between the man and the brand. It is, of course, that disconnect that makes this a legitimate and ongoing news story.
So far it appears that Tiger is fiercely trying to hold onto the brand, and indeed it is only the brand that we have heard from through posts on his website. The brand protests media interest in the man’s personal life. The brand makes remarkably meaningless revelations such as, “I am far short of perfect” – a presumption that only ever applied to the brand, not the man. Until the man reveals himself (perhaps I should rephrase that), the commentary and coverage of the disconnect will continue.
I have seen that disconnect before. It is a syndrome that can be found often in a libel plaintiff. In many of the libel cases that get filed, and in an even higher percentage of cases that go to trial, in my experience, there is a significant disconnect between the individual and the brand or image that he has tried to create. Libel cases that are fought the hardest are not necessarily those that come from the most probing journalism, or where the damages are likely to be the highest, or where the statements complained of are the most materially false. Rather, they are often fought by a person trying to hold onto a false brand. In some cases, the brand has been so closely cultivated by the man that it has taken him over – an affliction we have seen in more than one politician. In those instances, perhaps some semblance of the man recognizes that the story with which he now takes issue is substantially true; but the brand feels compelled to fight it.
As Tiger Woods has shown us, reputations are often built on false pretenses.
It is for this reason that evidence of character, in addition to evidence of reputation, must be admissible in defense of a libel case. I have had to fight that evidentiary battle where a libel plaintiff will try to exclude evidence about some nefarious acts he has engaged in on the grounds that no one had ever suspected him of such behavior and therefore it did not form part of the plaintiff’s reputation prior to the publication of the complained of statements. It’s the “if a tree falls in the forest (whether hit by Tiger Woods or otherwise) and no one is there to see it, it can’t come into evidence” argument. The premise for such an argument is that the plaintiff is seeking compensation for damage to his reputation, and he should be able to recover damages whether that reputation is deserved or not. But this argument belies the fact that it is the man who collects the damages, if they are awarded, on the grounds that he is not the type of man on would engage in such behavior – not on the grounds that he is the type of man who would engage in such behavior but has just managed to keep it quiet. As Tiger Woods has shown us, reputations are often built on false pretenses.
One argument in furtherance of the ability to admit evidence of character, or lack thereof, is the particular relevance of such evidence to future damages. Even if, up to the time of trial, the plaintiff has been able to keep his reprehensible behavior in the shadows while perfecting his brand in the light, the parable of Tiger Woods can serve as an example. There is a substantial chance that that which has taken place in the shadows will have the light shined upon it eventually. To exclude such evidence would be to allow a plaintiff to recover in perpetuity for a brand that may be revealed to be false.
Thus, in defending libel cases, all efforts should be made to break through to the man and not be repelled by the armor of the brand. I suspect that the words “Tiger Woods” may appear in more than one court argument on this issue in the years to come.
— Bob Latham is a partner at Jackson Walker. He can be reached at blatham@jw.com.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
