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Refusal to negotiate settlement of first civil claim ended up costing Deshaun Watson plenty

The NFLPA is expected to file its response to the NFL's appeal over Deshaun Watson's six-week suspension, and with Peter Harvey appointed for the appeal, Mike Florio believes the league will get exactly what it wants.

At some point before March of 2021, Houston attorney Tony Buzbee contacted the representatives of then-Texans quarterback Deshaun Watson regarding a civil claim against Watson. It is common if not routine for lawyers to attempt to settle claims before filing them in court. In this case, however, Watson’s camp flatly refused to even talk.

In hindsight, that was the first -- and arguably biggest -- mistake made on Watson’s behalf. Buzbee made an opening demand of $100,000. That usually signals a willingness to settle in the range of $50,000 to $75,000. And if Watson had simply settled that first claim, there may have never been a second one.

Watson’s representatives instead refused to make even a nuisance-level opening offer, in the range of $5,000 or $10,000, to keep the discussions moving. At one point, they asked for more information about the claim from Buzbee, and they essentially asked him to make a new (and lower) offer.

“I can tell you at that point I was pissed,” Buzbee said Thursday in a press conference. “The U.S. Marine in me would not be denied at that point. We had no other option but to file suit.”

That’s a cardinal sin, as negotiations go. Lawyers never should be asked to bid against their own offer. There’s a ritual, an etiquette. If one side wants the other side to make a new offer, that side needs to make an offer of its own.

Buzbee explained during his press conference that he tried to settle the first case (the one brought by Ashley Solis) privately, to shield her from scrutiny, criticism, threats, etc. As Buzbee said, confidential settlements are made in the American justice system every day. Frankly, pro athletes routinely pay private, confidential settlements in order to avoid the exact kind of controversy and complications that Watson has experienced -- from a criminal investigation to an NFL suspension. If that first case settles in an acceptable range for Buzbee, he never gets “pissed.” He never gets motivated to find more clients with similar claims against Watson.

To date, Watson has spent much more than the $100,000 Buzbee originally requested. Buzbee said Thursday that his firm incurred more than $250,000 in out-of-pocket costs while litigating the 24 cases he eventually filed. Last October, Watson offered each of the 22 plaintiffs (two more have filed suit since then) $100,000 to settle. All but four were ready to proceed.

This year, after Watson absorbed multiple body blows of bad publicity while seemingly caught flat-footed in the barrage, 20 of the cases settled. So what was the magic number at that point? $250,000 each? Buzbee can’t say what the plaintiffs received, due to the confidentiality provisions in the settlements. However, it would definitely be on brand for him to send a deliberate signal as to the value of the 20 settlements by publicly using that very number as the amount of total litigation costs incurred.

If that truly is the number, that means Watson spent $5 million to settle 20 of the cases. As to the four who said “no thanks,” three of them have since changed their minds. I’ll guess (and again these are all guesses) that the other three got $500,000 each to finally resolve their cases. That pushes the total to $6.5 million.

There’s still one more to go. She has resisted all offers to date. What will it take to get her to not take her case to trial? A million?

Then there’s the fact that the Texans settled with 30 total potential claimants. It’s possible that Watson reached private settlements with six women who had not yet sued him. At $250,000 (again, a wild guess), that’s another $1.5 million.

And none of this includes legal fees, paid to Rusty Hardin’s firm for the defense of the civil actions and Hardin’s aggressive efforts to help Watson avoid a criminal indictment. Hardin, an experienced and accomplished litigator, surely charges a very high hourly rate for his time. He had a team of lawyers working on these cases. They worked on them for more than 16 months, and they’re still working on one of them. Also, Hardin’s firm handled the league’s internal effort to discipline Watson, another source of significant legal fees and expenses.

So how much has Watson paid to his lawyers? Another $5 million? More? Watson provided for Hardin’s firm the perfect kind of client -- Watson had the money and the motivation to fight, since he apparently continues to insist he did nothing wrong.

It’s entirely possible that Watson already has spent well over $10 million (with the meter still running) in connection with something that could have been quietly and efficiently resolved for perhaps $75,000. With no publicity. No embarrassment. No impairment to his reputation. No stress or strain. No suspension.

It’s an important (and ridiculously costly) lesson learned for Watson, and a cautionary tale for all other pro athletes who may be approached to pay a private settlement of a potential legal claim. It’s better to spend a relatively small amount of money now than a whole lot later.