By Joe Scibelli, Esq.
Before we start this article, first and foremost, nothing of what I am writing about should be misconstrued as legal advice.
I’m writing about all the questions and disturbing allegations concerning NFL quarterback Deshaun Watson. I have written a lot about Watson lately and it troubles me that this is the newest development in this off-season. I want to shed some light (which is strictly opinion) on questions I’ve read throughout social media/comments on the events taking place.
Deshaun’s case is disgusting to say the least. The facts surrounding the case and the allegations are vile and repugnant. However, people are questioning a big aspect of all these lawsuits, “why are all this money and demands for it involved.” In short, the law cannot make it so the bad thing that happened to you, never had happened. It happened, these massage therapists are alleging Watson wronged them, and how cases are handled, you get money as damages. That’s how it is and will be until we develop time travel. What I struggle with also is when people say, “why did these lawyers send letters demanding $100,000 to settle the case.” Fun fact, I send these letters all the time. Maybe not for cases like what’s going on in Houston, but for basic slip and falls, car accidents, breach of contracts, and other crazy matters. Demand letters are part of the process. Courts are over packed, and the system is clogged tenfold due to COVID-19. 95 percent of civil cases settle, but that number doesn’t include possible cases that settle prior to a lawsuit. Actually, the law encourages civil attorneys to settle matters both before a lawsuit and during.
What Tony Buzbee was trying to do is start the conversation. What better way than demand a ton of money or threaten suit. However, I know attorneys who would prefer to file suit. Yet, I can imagine these victims wouldn’t want their names and dramatic stories being put on public record making a private settlement reasonable. Now that the Judge is ordering that a Plaintiff to reveal her identity which more of the motions are soon to come.
Buzbee is trying to make all his clients whole and doing it the best way is his client requesting with his opinion in mind. Buzbee stated, “we made a legit demand. You rejected it.” This happens all the time and the client decides if a lawsuit is filed or not, attorneys just advise. Nevertheless, I honestly believe that Ashley Solis, one of the named Plaintiffs to come forward, when she stated she is not “doing this just for money.” She sought legal help and, civilly, this is how you do it. For civil matters, the court/jury determines liability. For criminal cases, the question is if the defendant is guilty.
Criminally speaking, unfortunately for Solis and all the other victims, is a lot higher burden. For civil cases, the burden of proof, depending on the claim, is that the Plaintiff must prove more likely than not the Defendant was wrong, which in legal terms is defined as Preponderance of the Evidence. Also to just file suit, you need to do so in good faith, which is broad and vague. To get an indictment or warrant, law enforcement or the local district attorney’s office needs to provide the court or a grand jury enough evidence to find Probable Cause. Preponderance of the Evidence is roughly 51% percent Defendant did it, compared to Probable Cause, which can range depending on the Judge or Grand Jury 65% – 85% the Defendant did it. Furthermore, for criminal cases, the State needs to prove Actus Reus, meaning the Defendant did the illegal act and depending on the statute, Mens Rea, which means the Defendant had the mental state of mind of doing the act required by law, and Causation, which is self-explanatory.
This is a high burden, and Judges can give the State a hard time when they present the case. I can see the DA electing to use a Grand Jury to indict Watson if it gets that point because these are serious habitual allegations. Watson’s legal team, I bet, are trying to resolve this matter behind the scenes and if what Watson is being accused of is true, trying to punch holes in the case to prevent an arrest warrant. The Houston PD is building its case, and Watson’s legal team is in the process of weakening it, like when Deshaun-supporting massage therapists came out and said Watson is a good client. Not the best evidence, arguably terrible evidence because certain rules in the Federal Rules of Evidence, but it does punch holes in the case against Watson. Deshaun is fighting a two-sided battle, one-side all the civil claims which will be a financial hit, maybe a lot even for Watson. On the other side is the real concern for Watson. A criminal trial doesn’t settle (meaning both sides are unhappy), they plea or worse convicted. Another fun fact, the Judge decides the sentence even if you plea, but judges are more than likely to listen to the State’s recommendation. Watson’s legal team has a lot of work ahead of them, and discovery is going to be long with a lot of hearings concerning legal issues. In short, Watson is in a terrible spot.
The repercussions are already taking place: loss of sponsors, deals, and the incurring legal fees. Watson’s alleged actions are despicable, but when the Plaintiff Attorney Buzbee demanded $100,000 prior to filing suit, he probably demanded higher than the case is worth, civilly speaking. This case is still fresh, and there is a lot of speculation and hearsay present, and will present itself in the future. I can only hope the truth comes out whatever it may be and that our legal system does its due diligence to resolve this matter in the manner it deems fit.