Breaking down the legal strategy in the Deshaun Watson case

ByMichael Rothstein ESPN logo
Monday, April 12, 2021

When Texas attorney Tony Buzbee filed the first civil lawsuit against Houston Texans quarterback Deshaun Watson on March 16, he said he knew of only two complainants. Within three weeks, Buzbee and his law firm had filed 22 cases, with women from four states accusing Watson of behavior ranging from inappropriate exposure to sexual assault during scheduled massages.

The dizzying rate at which Buzbee and his team have filed the suits raises questions about the risks and rewards of his strategy, for the women he represents and for Buzbee himself. How thoroughly does Buzbee's team need to vet potential plaintiffs before bringing a case forward? What's the standard of evidence required?

Due to the high-profile nature of a case like this, being aggressive in getting the client's story out first is important, said Michelle Simpson Tuegel, a Texas plaintiff's attorney who represented several gymnasts who were sexually abused by USA Gymnastics team doctor Larry Nassar. "Being out ahead of it is smart and necessary in a case like this," she said.

Buzbee's strategy can also make a defense team scramble. "Many times a lawsuit will catch a defendant completely off-guard, catch him cold," said Kent Adams, a Texas-based civil defense lawyer. "They'll retain counsel and start an investigation but [be] behind the eight ball. And it can take some time to get up to speed and try to find out what the other side of the story is."

This is not the first time Buzbee has used speed to unsettle the defense. In August 2020, Buzbee sued a company Adams represented following a pipeline explosion in Corpus Christi, Texas. Buzbee filed four cases the same day. Other lawsuits followed in the subsequent weeks. Some of the filings are still working their way through the courts.

At his first news conference on March 19, at which point he had filed seven cases, Buzbee said he and co-counsel Cornelia Brandfield-Harvey spent "a lot of time" with the first plaintiff to make sure they were comfortable with the case and "agonized" over whether they would file. According to emails released on Thursday by Watson's attorney, Rusty Hardin, Buzbee's firm spoke on the phone with Watson's representatives at Athletes First on behalf of the first plaintiff, Ashley Solis, as early as Feb. 2.

"Before we filed the first lawsuit I personally visited with the plaintiff multiple times," Buzbee said in March. "I understood that this case would generate a lot of interest. I wanted to make damn sure that what she was saying was plausible, was right and true."

However, the turnaround time was much faster for the approximately two dozen women who approached Buzbee's firm after the initial filings -- the 20 women who filed suits and five additional women the firm turned away because "we did not believe we could sustain a case for," Buzbee said Tuesday. How could they have vetted so many cases so quickly?

"It's possible but it's certainly fast," Simpson Tuegel said. "Tony Buzbee has a lot of resources and a lot of people who work for him. So he may be able to turn around the vetting if his clients were fully cooperative and got him what he needed quickly."

Buzbee's firm lists 13 lawyers on its website and maintains offices on the 73rd floor of Houston's JPMorgan Chase Tower, the tallest building in Texas. The firm has taken on large cases in the past, including defending former Texas Gov. Rick Perry against abuse of power charges in 2014 and representing singer Jimmy Buffett in a case about illegal use of the singer's trademark. Five attorneys -- Buzbee, Brandfield-Harvey, Crystal Del Toro, Brittany Ifejika and Maria E. Holmes -- are listed on the Watson case.

Each law firm has a different vetting process. Simpson Tuegel will sometimes spend half a day with a potential plaintiff getting as many details as she can, and she will ask if the client told anyone about the incident immediately after it happened. She also has her team scour social media to find digital evidence -- photos, posts -- to corroborate the claim.

"As I'm preparing my clients, I'm often thinking through what questions I would cross-examine the victim with," Simpson Tuegel said, "and trying to deal with those issues and think through what answers it, corroborates it or gives me peace that this person is telling the truth. That's my initial vetting process."

Before filing a claim, Simpson Tuegel said, she tries to prepare her clients in high-profile cases for the potential media coverage. Darren Miller, a Texas-based plaintiff's attorney who represented clients in a sexual abuse case against USC this year, said he often tells plaintiffs they need to be completely honest with him about their histories to anticipate scrutiny from the press.

If the client is afraid of the increased attention, they suggest filing as a Jane Doe or John Doe to try and protect anonymity. In Watson's case, all 22 plaintiffs were initially Jane Does, though two, Solis and Lauren Baxley, have since come forward with their real names. On Friday, Buzbee said 10 additional plaintiffs will identify themselves, and two judges ruled that three more must disclose their names for their cases to continue.

The decision to file a case often comes down to having basic evidence to support a claim, and each lawyer has his own standard, according to Chris Tritico, a Houston-based criminal defense attorney who also works in personal injury and civil litigation.

"There's nothing that says you have to have X amount of proof before you file a suit," he says. "Each lawyer has to set their own standards for what amount of proof they are willing to have before they file a lawsuit. But the bottom line is if you can't prove it, you're going to lose."

If some of the cases don't appear to hold up, defense counsel Hardin could use that to ask questions about Buzbee's other cases. Hardin has released statements from 18 women who say Watson "never made them feel uncomfortable or demanded anything outside the scope of a professional massage" in more than 130 sessions over the past five years. Hardin also issued a statement after Buzbee's Tuesday news conference alleging that Buzbee sought "$100,000 in hush money" on behalf of Solis.

Tritico said he would do his own investigation and get comfortable with the facts before filing -- similar to what Buzbee said his firm did with the first plaintiffs. And like Buzbee did with Watson's representatives at Athletes First, Tritico said he would get the potential defendant's attorney on the phone and give a timeframe for a response before they filed suit.

Tritico also said he would encourage plaintiffs to go to the police department before filing civil suit, although filing a civil claim without a criminal complaint is not uncommon in sexual abuse cases, Simpson Tuegel said. On April 2, the Houston Police Department said they received a criminal complaint against Watson, which Buzbee said Tuesday is from one of his clients. Shortly after the criminal complaint was filed, Hardin released a statement saying he and his team "welcome this long overdue development," in part because they would learn the name of one of Watson's accusers.

Ultimately, how long vetting takes will vary by the attorney and the case.

"I don't know if there's an answer to that," Tritico said. "Somebody might come in and the evidence is so clear and compelling that you don't have to do a whole lot of work. Some of them come in and it takes longer to look at it."

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