Friday, March 19, 2010

Tiger's Texts: A Lawyer's Take

If anyone wondered why "adult film actress" and reputed lover of Tiger Woods Joslyn James felt the need to go out and retain a big-time lawyer, the picture is getting clearer by the day. Here's my "lawyer's take" on what's going on:

Yeah, sure, Joslyn James was going to find herself in the glare of the public eye, and a lawyer can help manage the publicity and keep the press at bay (i.e., "That one's lawyered up, and Allred is something fierce. Maybe I won't try to break in Joslyn James's house and get pictures of her in the shower.").

But James isn't just in a defensive posture. Consider that she invited press to listen along beside her as she took in Tiger's self-serving soliloquy back on February 19. Consider, too, that when Tiger was finished, Ms. James took the podium and delivered her own tearful statement, demanding a direct apology from Woods. An awkward angle to try to work, this "I thought I was the only Other Woman" bit. But the statement was thick with shots across the bow of Woods's legal team: little tidbits of information that might add up to lawsuit against Tiger. She loves Tiger, and he made her promises. She had pregnancies that ended in miscarriage and abortion. She gave up her career at his request. Yeah, Gloria and Joslyn are laying the groundwork for threatening all sorts of legal claims. Lousy claims, but claims nonetheless, and the point isn't whether you can win or lose on these lousy claims; the point is whether you can get Tiger to pay you some money to make sure they don't end up in court to begin with. What Tiger will pay to settle these claims has very little to do with the value of the claims themselves. He's confronting a potential lawsuit, brought by his mistress, which will extend this scandal for another couple years well past the endpoint he'd hope to establish for it (with his apology speech) and vivisect his sordid personal life, laying it open for the world to see in public legal proceedings.

Which brings us now to the text messages that Joslyn James recently released to the press.
This is hardball. Joslyn James earlier said that she has some 11,000 text messages from Tiger Woods. She released a small subset — only around 100 — of those messages. Release of the messages suggests what should have been obvious following Ms. James' delivery of her counterstatement on February 18: that Allred and Woods's attorneys are negotiating a settlement that will keep James from suing Woods and posting any more damaging information to the media. One of the following is true: (1) they're not close to a deal, or (2) they've reached a deal, and James released the texts anyway. Both scenarios are intriguing.

Scenario (1) suggests that Joslyn James has information far more damaging than what she released yesterday — and the texts she released yesterday were pretty darn damaging, describing Woods' interest in sadistic sex acts. No way no how does Gloria Allred let Joslyn James disclose the most lurid info she has. If this were the worst of it, Woods's attorneys would have no reason to bargain with her, as James couldn't hurt Woods any more than she has to date. We therefore have to assume that the ~100 texts that James disclosed yesterday were carefully selected to generate a modest amount of media buzz (thereby getting her back in the news) but not so much as to leave Allred without leverage going forward. We have to assume that there is something much worse in the rest of the 11,000 texts (or, theoretically, in some other explosive format: video?).

Moreover, the timing of the release was calculated: Tiger announced on Tuesday that he would return from his golf hiatus to play in the Masters next month. He's starting to get back into business as usual, and he's back in the news, too. James counters with the release of the text, which destroys any positive PR momentum he has.

Under Possibility (2), Woods and James have already reached agreement, and James has been already received a lump-sum payment of hush money. There is presumably an enforceable contract here, negotiated by attorneys: Woods pays James an unspecified amount (confidential, of course, per the terms of the contract), and James hands over any documentation of the affair for Woods to destroy. But of course, James could always surreptitiously keep a copy of her materials, to publicize after she cashes her check. This would be a breach of the contract, and Woods could sue her, but would he? If he did, well, there's that very public lawsuit again, and on top of all the other nastiness that would come out about the affair, there would be this new distasteful overlay: Tiger wrote a big check to keep this girl quiet, and now he's suing her over it. In theory, then, James could get paid both by Woods (to keep quiet) and by the press (to spill her secrets). Woods's lawyers, if they have any sense, would therefore have every reason to structure the deal to require payments over time — perhaps an annuity — so that they could preserve some leverage over James going forward, other than resort to the courts. We should assume that Woods's lawyers have quite a lot of sense, such that Scenario (2) is therefore the much less likely of the two here.

All of the above analysis is predicated on the assumption — and I think this is right — that James stands to gain more from Tiger if she withholds her information than she can get from anyone in the press if she discloses it all. The value of a "hot news" exclusive, in this day and age, isn't really all that. Once the texts are out, anyone can pick them up and run with them. It makes sense that Tiger would pay millions to James to keep her quiet; it makes much less sense that a media organization would pay a comparable amount to break this story five minutes before everybody else.

And of course another assumption is in play: that James isn't just an irrational "woman scorned" figure here, whose interest is simply to throw everything she has at Tiger, to hurt him as badly as she can, and damn the settlement offers. This seems to me unlikely. You don't hire Gloria Allred unless you want to work an angle, and Gloria Allred doesn't continue to represent you if you're delivering all your best stuff to the press in anger. And for that matter: ELEVEN THOUSAND TEXTS? James was clearly archiving these messages, either as keepsakes because she loved Tiger so much or rather to save for a rainy day — or a day of opportunity. Hm.

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