Deshaun Watson Sexual Assault Lawsuits Highlight Evidentiary Issues with Assault Claims

The twenty-one assault lawsuits (as of the time of this writing) that were recently filed against Deshaun Watson highlight evidentiary issues that plaintiffs and defendants face when litigating assault claims.

The court system seeks the truth to resolve claims made in a lawsuit. While some lawsuits can be decided by judges applying the law to undisputed facts, other lawsuits require juries to determine the facts from disputed or conflicting evidence. Of course, parties can and often do settle. But any settlement is made under the shadow of what the parties think a judge or jury would do given the applicable law and the evidence.

The plaintiffs in the lawsuits against Watson will need to prove by a preponderance of the evidence that an assault occurred. Preponderance merely means that “something is more likely than not.” ¹ In Texas, “[t]he elements of assault are the same in both the criminal and civil context.” ² “A person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” ³ Texas does not require an actual physical injury, “rather . . . offensive contact is the gravamen of the action; consequently, the defendant is liable not only for contacts which cause actual physical harm, but also for those which are offensive and provocative.” ⁴

A civil assault case is typically decided by a jury based on disputed evidence, rather than by a judge based on undisputed evidence. The jury will often hear conflicting testimony regarding the alleged assault from the opposing parties involved in the lawsuit. These lawsuits are sometimes referred to as “he said, she said” lawsuits, because the case will be decided on whether the jury believes one party’s testimony over the other. ⁵ In these cases, the jury will be deciding whether they believe Watson’s testimony or the plaintiffs’ testimony regarding the alleged assault. When determining the credibility of the witnesses, the jury can consider “the demeanor of those testifying—their voice inflections, body movements, pauses in speech, and other overall visual and verbal cues—which can affect the fact finder’s determination of the veracity of their testimonies.” ⁶ “As there was no third party witness or independent evidence supporting either version, it was up to the [jury] to determine the truth from their testimonies.” ⁷ Jurors “may choose to believe one witness and disbelieve another.” ⁸ Judges give great deference to a jury’s credibility determinations. ⁹

While a jury can and often does decide cases based simply on the two parties’ testimony regarding the alleged assault, the parties often try to provide “independent facts and circumstances that support, and thus corroborate” a party’s testimony. ¹⁰ The party that can marshal the strongest and most relevant corroborating evidence has a better chance to convince the jury to believe his or her testimony. For example, in a breach of contract case there was disputed testimony between the plaintiff and defendant regarding whether a key conversation regarding the contract occurred. ¹¹ The defendant’s employee testified the conversation never happened. ¹² The plaintiff testified the conversation had happened and pointed to a contemporaneously made post-it note referencing the conversation. ¹³ The jury ultimately sided with the plaintiff. ¹⁴ The defendant argued on appeal that the post-it note was the reason that the jury sided with the plaintiff. ¹⁵ The appellate court permitted the admission of the post-it note into evidence and upheld the jury’s verdict. ¹⁶ Thus, even seemingly insignificant corroborating evidence like a post-it note can be enough to sway a jury to credit one person’s testimony over another person’s testimony.

Some of the plaintiffs in the Doe v. Watson cases have alleged corroborating evidence that, if true, could sway a jury to side with the plaintiffs over Watson. For example, the plaintiff in Cause No. 2021-15324 alleged that “Watson reached out to Plaintiff via text message to apologize for the incident.” ¹⁷ If the text message is provided to the jury, it could help the jury to credit plaintiff’s testimony over Watson’s testimony. Additionally, several plaintiffs testified that they told a mother, a spouse, or a friend immediately after the alleged assault. ¹⁸ The jury would likely be interested to hear from these witnesses regarding how Doe acted immediately after the alleged assault and whether what Doe testified to in court was similar to what was told to the mother, spouse or friend. Watson’s attorneys will likely argue that the relatives and friends of the Does’ are biased, not independent, evidence. But it will be up to the jury to decide whether to credit the potentially corroborating testimony.

Several of the Jane Doe plaintiffs alleged that they are seeking counseling. ¹⁹ Notably, the plaintiff in Cause No. 2021-16298 alleged that she was currently seeing a psychiatrist. ²⁰ The records from the counseling sessions could provide corroboration for the plaintiffs’ testimony at trial. However, Watson’s attorneys will likely point out that counseling sessions are still only based on the plaintiffs’ account of what happened and are therefore not independent or corroborative. Again, it will be up to the jury to sift through the evidence and decide whether to credit the plaintiffs’ testimony or Deshaun Watson’s testimony.

Importantly, these lawsuits are in their early stages and are only based on unsworn allegations. As the cases develop, evidence not publicly alleged may become available. Corroborating evidence does not mean that a jury must side with the party presenting the evidence, only that the corroborating evidence could help the jury decide which party’s testimony to credit. Ultimately, these cases will be decided by a jury based on the evidence, or resolved through a settlement by mutual agreement of the parties based on what they believe a jury would do with the likely evidence at a trial. While corroborating evidence is not necessary or required under Texas law, a potential plaintiff should develop corroborating evidence whenever possible to ensure the plaintiff has the best chance to win at trial or to reach a favorable settlement.

1. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004).
2. Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
3. Id. at 649–50 (citing TEX. PEN. CODE ANN. § 22.01(a) and Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.—Austin 2000, pet. denied)).
4. Foye v. Montes, 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
5. See Scott v. Christian Methodist Episcopal Church, No. 02-10-00434-CV, 2012 Tex. App. LEXIS 141, at *6-7 (Tex. App.—Fort Worth Jan. 5, 2012).
6. Id.
7. Id.
8. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
9. Id.
10. Seaprints, Inc. v. Cadleway Props., 446 S.W.3d 434, 440 (Tex. App.—Houston [1st Dist.] 2014).
11. Dynegy, Inc. v. Yates, 345 S.W.3d 516, 521 (Tex. App.—San Antonio 2011).
12. Id.
13. Id. at 535.
14. Id.
15. Id.
16. Id.
17. Cause No. 2021-15324 Petition at 4.
18. See Cause No. 2021-15613 Petition at 4, Cause No. 2021-15938 Petition at 3, Cause No. 2021-16370 Petition at 3, Cause No. 16372 Petition at 4, Cause No. 2021-16424 Petition at 4, Cause No. 2021-16903 Petition at 4, Cause No. 2021-18045 Petition at 5, Cause No. 2021-18047 at 3.
19. See Cause No. 2021-15324 Petition at 5, Cause No. 2021-15536 Petition at 4, Cause No. 2021-15613 Petition at 4, Cause No. 2021-15937 at 4, Cause No. 2021-15940 Petition at 3, Cause No. 2021-15943 Petition at 3, Cause No. 2021-16650 Petition at 4.
20. Cause No. 16298 Petition at 5.