Mar
24

Hulk Hogan and St. Augustine's Pears

Erin Andrews and Hulk Hogan have me wondering about St. Augustine’s pears. Is something like a meaningful sense of sin taking root?

Andrews and Hogan, whose legal name is Terry G. Bollea, were awarded eye-popping verdicts in separate trials in recent weeks.

Andrews, a Fox sportscaster, won $55 million against defendants responsible for secretly videotaping her while nude in a hotel.

Hogan won a verdict of more than $140 million against Gawker, which published secretly recorded videos of the wrestler having sex with a friend’s wife.

The verdicts surprised me: We live in voyeuristic times; common decency seems quaint. In the no-holds-barred world of the Internet, boundaries are transgressed for the sake of pleasure. Have we had enough?

Andrews and Hogan brought personal injury claims, claiming that the tortious — the term has its roots in the Latin term for “twisted” — behavior of others caused them harm.

Andrews contended a hotel in which she stayed was negligent in securing her privacy, thus permitting a guest secretly to film her nude through a keyhole. Those films were displayed online. A jury apportioned blame as follows: 49 percent to the hotel, and 51 percent to the man.

Where do these numbers come from? Your guess is as good as mine. We give to juries the right to assess blame, and generally defer to their findings of fact.

But what of the $55 million in damages? Where does that number come from?

The civil justice system deals typically in money damages. Juries award financial compensation to the injured to make them whole insofar as money can. So what’s the value of a broken heart?

Andrews testified that she was devastated by the images and their presence online. They haunted her daily. They were a constant source of humiliation. But $55 million? Really?

That’s an angry jury talking. Andrews was a sympathetic witness.

But what of Hulk Hogan? This professional wrestler had previously boasted of his sexual prowess. He made his living in a cartoonish world of make-believe. What’s more, he was filmed while intimate with the wife of a friend. This is not exactly sympathetic stuff.

Yet a jury awarded Hogan $115 million in compensatory damages — damages designed to make him whole; $60 million of that award was for emotional distress, the other $55 million was “economic” damages.

Several days later, the jury then awarded $25 million in punitive damages against Gawker, the online publisher of the steamy video. These latter damages are designed to punish and deter Gawker.

It’s hard to conceive of Hogan suffering $60 million of hurt feelings. A man boasting about his peccadillos somehow seems like hypocrite when he cries distress for having been caught in the act.

Another angry jury at work.

So what were the juries angry about?

I am hoping it had something to do with a sense of a moral world without boundaries, a world in which nothing matters save the thrill of transgression.

Juries trials are always morality plays. Jurors expect to be told a story of good versus evil. The advocate’s job is to persuade jurors that his side represents the good; at the very least, evil must be found in the other side’s case.

Thus, in criminal cases, despite the high-sounding rhetoric about the presumption of innocence, most jurors come to service armed with the assumption the defendant is evil. They view trial less as a chance to see whether the state can prove its allegations than as an opportunity to be shown what the bad man or woman on trial has done to warrant the accusations against him.

To stand any chance of winning, the defense lawyer must find evil elsewhere — either in a witness, or, as sometimes happens, in the prosecutor. Juries decide cases on the basis of emotion.

They’re not supposed to, of course. Judges tell them they must put sympathy aside, insofar as they can. Emotion is to play no role in deciding a case. They are to decide the case based on the facts and the facts alone.

Yes, yes, yes — I hear you, judge. But aren’t you asking turtles to fly?

In civil cases, a party stung by a verdict that is the evident product of passion, prejudice and emotion can ask that the verdict be set aside, or that the amount of damages be reduced. This latter procedure is called a remittitur. Expect the defendants in the Hogan and Andrews case to make such arguments.

Regardless of what judges do to the Hogan and Andrews verdicts, I am heartened that jurors acted as they did. It sends a message: “Don’t steal the pears just because it’s a thrill to do so.”

Pears?

St. Augustine’s Confessions remains one of the great spiritual classics of all time. The Church father wrote movingly in the fourth century about his life. Sin — love of the wrong thing — defined his early years. He found peace only in the love of God, hidden in plain view all around him. Only grace permitted Augustine to this accept this gift, if he would but turn, or repent, from sin, from love of the wrong things.

In Book Two, Augustine wrote about his youthful theft of pears. The pears were not desirable in and of themselves. He did not need them; nor did he want them. He and his friends stole them because it pleased them to do so — it was fun: “If any morsel of pear entered my mouth, it was the crime of stealing that gave it spice,” he wrote.

We live in voyeuristic times. What pleases the eye is the scoffer’s prize. Of the deadly sins sloth is the least remarked upon. It is the sense of despair that comes of not knowing what to love, of loving the wrong things. Hence, our love of scandal and rage — the twin towers of the Internet. We love the stolen pears.

I’d like to think the Hogan and Andrews verdicts are a sign we know better. Let’s see what judges now do to these verdicts. The verdicts are a potent slap at sloth. Amen, I say. 

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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