Not every development in an inherently public controversy requires a response. Sometimes, the best response is no response at all.
On Tuesday, lawyer Rusty Hardin arguably would have better served his client by not responding to the compelling presentation made by Ashley Solis, the first of the 22 individuals suing Deshaun Watson for assault and harassment to attach her name to the litigation and to speak publicly regarding the situation. Hardin’s lengthy statement seeks a “gotcha” moment by attacking this specific claim made by Ashley Solis during her presentation to reporters: “People say that I’m doing this just for money. That is false.”
Hardin’s statement attempts to characterize that as a lie, and in turn Ashley Solis as a liar, by sharing chapter-and-verse details regarding settlement discussions that occurred before her lawsuit was filed three weeks ago. Although Hardin uses the term “hush money” to describe the opening settlement demand, the email messages disclosed by Hardin reveal the standard type of pre-litigation communications in which lawyers engage in an attempt to resolve potential claims without litigation by going back and forth in the hopes of reaching a consensus.
The emails confirm that the opening demand of $100,000 wasn’t made in an unethical or improper manner but in the normal way that such matters unfold, with one attorney alerting another attorney to the existence of a dispute and with both attorneys trading messages until the dispute is, or isn’t, resolved. The opening demand wasn’t eye-popping, given the usual value of civil litigation involving claims like those at issue here. Solis, through attorney Tony Buzbee, requested $100,000. This means that, through the process of negotiation, Solis and Buzbee eventually would have accepted less. Most likely, the case would have settled somewhere between $50,000 and $75,000.
The emails produced by Hardin show that the demand wasn’t being viewed as extortion or blackmail but as a legitimate effort to resolve the case.
“[I] wanted to check in on this to see if Ms. Solis wanted to either help us understand the rationale behind the $100k demand or come back with a different figure,” Scott Gaffield wrote on Watson’s behalf. “As I said to [attorney] Cornelia [Brandfield-Harvey] last week, we don’t believe that the alleged facts show that Deshaun did anything wrong with regards to Ms. Solis, but we are nevertheless happy to continue the conversation around a reasonable settlement figure because we believe he can learn a lesson about having put himself in this situation.”
In other words, Watson’s camp was willing to consider paying something to settle the case because, as Gaffield said, “we believe he can learn a lesson about having put himself in this situation.”
Amazingly, Hardin’s team voluntarily disclosed this communication, which otherwise was confidential and never meant for public consumption. It shows that Watson’s representatives viewed the claims made by Ashley Solis as something that weren’t frivolous but that instead provided a useful opportunity to teach Watson a “lesson about having put himself in this situation.”
More importantly, this effort from Hardin and his team ultimately arises from a desire to paint Ashley Solis as a liar because her lawyers made an opening settlement demand of $100,000 and she now says that it’s false to say that she is doing this “just for money.”
While it’s common for lawyers to attack an adversary by painting the adversary as a liar, there’s an important thing to remember when doing so. The statement under attack needs to clearly and indisputably be a lie.
Proving that, in February, Solis would have settled the matter quietly and without the expense, delay, uncertainty, and discomfort of litigation does not show that she’s lying now, when she says she’s not doing it “just for money.” Although some of Buzbee’s comments about the cases not being about money have been disingenuous, in part because the civil justice system is founded upon the idea that justice is dispensed via the payment of money and not an eye for an eye (thus the presence of the term “civil”), the fact that Ashley Solis was willing to accept a lump-sum payment as justice for the indignity she allegedly suffered without having to go to the trouble of filing a lawsuit does not mean that she has some improper motive or that this is some sort of cash grab.
Hardin wants people to believe it is a cash grab. Now that we have seen and heard from Ashley Solis, and acknowledging the extent to which her decision to go public will disrupt her life, who would reasonably claim that this is about trying to squeeze $100,000 out of Watson?
Hardin, in many respects, was caught flat-footed by Buzbee’s assault on Watson in the court of public opinion. Although Buzbee has not performed flawlessly, Hardin’s attempt to characterize Ashley Solis as someone who is viewing her lawsuit against Watson as a ticket to a potential six-figure lottery prize misses the point, and in turn misses the mark.
Ultimately, what good does Hardin’s response do for Watson? That’s the question that should have been asked by someone on Hardin’s team. And that’s the toughest thing to do when the echo chamber begins to reverberate. There’s often no one within the bubble of zealous advocates for one side’s position who can or will step back and say, “Should we really be doing this?”
If there was someone like that on Watson’s legal team, today’s statement undoubtedly would not have been issued.