In the week since Texans quarterback Deshaun Watson disclosed that he was facing a lawsuit that he refused to settle, I’ve been asked several times over the past few days how I would represent and/or advise Watson. I’ve thought about it a lot, reflecting on cases that I handled during a 18-year legal career before making this my full-time job in 2009.
Before representing Watson, I’d want him to pass a polygraph test, so that I could put my full effort and attention behind a cause that I believed to be right and just and proper. I wouldn’t want to attach my name and reputation to someone I didn’t fully believe. Based on the number of plaintiffs currently accusing Watson of misconduct, I would only fully believe Watson if he passed a polygraph test.
The advice I’d give him has nothing to do with his potential guilt or innocence. Regardless of whether he’s guilty or innocent or some of both, he should settle all pending and threatened cases, now.
He should instruct his lawyer, Rusty Hardin, to arrange a mass mediation session with attorney Tony Buzbee. They should hire a retired judge with the presence and demeanor to make all parties feel like their voices have been heard, and that their day in court has been realized. The retired judge would serve as a mediator, negotiating an agreement between Watson and each and every accuser for a dollar figure and other terms that would fully resolve the cases. Watson, for example, would seek a full commitment to confidentiality, which would prevent the plaintiffs from cooperating with the NFL’s investigation under the Personal Conduct Policy.
It may be too late for Watson to avoid an NFL suspension, however. The sheer volume of claims coupled with a fairly quick settlement could prompt the league to exercise its right to grill Watson about the cases and to conclude that, even though he admitted to no specific wrongdoing, he put himself in the kind of position that justifies punishment. That was the gist, for example, of the suspension imposed by the NFL on Steelers quarterback Ben Roethlisberger in 2010.
Even if Watson still receives a suspension, it’s better than the alternative, which includes the reality of very expensive legal fees, the prospect of multiple verdicts against him, placement on paid leave by the league followed by a lengthy suspension, and potential incarceration.
Indeed, looming over the entire situation is the possibility that criminal charges will be filed. If Watson testifies in the civil lawsuits and invokes his Fifth Amendment right against self-incrimination, he’ll lose every one of them. If he testifies in the civil lawsuits and if it goes poorly, he’ll provide the prosecutor with a potential roadmap for criminal charges.
Thus, as distasteful as it may be to him to settle these claims, he needs to realize that it’s the only way out of this problem that entails a minimal legal fees, minimal disruption to his football career, minimal payouts to the plaintiffs (in comparison to the potential verdicts), and minimal chance of a conviction.
The plaintiffs, of course, wouldn’t be required to settle. For some, it may not be about the money. They may crave their chance to obtain justice in a court of law. If so, that’s their absolute right. If so, that will become obvious through the mediation process.
Regardless, the best move at this point would be to have a mediation session aimed at trying to resolve as many of these claims as possible and, from Watson’s perspective, ideally all of them.
This is the advice that I’d give Watson if he were my client, son, brother, nephew, cousin, friend, colleague, etc. Hopefully, someone in a position to influence Watson feels the same way, and will convince him to proceed with a strategy that involves trying to rectify these claims now, before irreversible damage is done to his career, his financial standing, and his image and reputation.