A few moments ago, in direct response to a tweet shared, which included the caption, “Florida State settles lawsuit with Jameis Winston accuser,” I was asked, “Why pay $950K if nothing happened?” Rather than attempt to respond via a tweet, which can at times restrict one’s ability to communicate or clarify meaning, I figured I would address the question in an article.
For details about the particulars of the settlement one can do a quick Google search and find articles shared by the New York Daily News, among others which articulate how Florida State University has agreed to settle the Title IX lawsuit brought by Jameis Winston accuser in the amount of $950K. People seem to be making a big deal over the fact that Erica Kinsman, Winston’s accuser will allegedly only get $250K of that settlement [remember it’s even less when you factor in the fact that she’ll may have to pay taxes on that income] but in my experience and based on what I know, that’s not uncommon for lawyers to receive a considerable portion. As much as lawyers are often perceived as greedy and ruthless, they should not be expected to work for peanuts, right?
So why pay such a huge sum of money, if nothing happened? Well first of all, nobody is saying that nothing happened. Not admitting to wrong doing or accepting responsibility is not the same as saying nothing happened. However, it might be a form of simply not accepting liability. This is a big deal because wrong doing would be admitting liability and opens up a whole other can of worms. For example, punitive damages could be assessed. To borrow the phrase so often used on Facebook, “It’s complicated.”
One of the things I think is so often omitted from media reports about this sort of stuff is the insurance protection that can come into play but insurance is never sexy, so who wants to include that into the mix? It sounds so utterly boring if the media reports say, FSU settled a Title IX lawsuit in the amount of $950K of which the entire amount was covered by insurance, right? Now I’m not saying it was but it very well could have been, and an astute risk manager would likely have made sure that defense of these matters would be covered under a university’s insurance program, right? As far as reasons to pay the amount of money even if nothing happened there are so many reasons why it might make sense – depositions, time and expense, disclosure of information that might not be good PR, and wanting to have it all behind you are just some of the reasons that it makes sense to settle. It’s a bit like taking a plea when you’re not guilty, but you think it might be better to go with the guilty plea rather than risk being found guilty in a trial especially if you might be guilty of something, or you just don’t trust the jury will see things in your favor.
During the time that this matter was making it’s way through the rumor mill, I was horrified at the way many in the media seemed to have pegged Jameis Winston as guilty without the facts – but that seems to be the way so many do things, especially in the media. It’s as though they talk about how cops are quick to judge on one page, and then on another page they are doing the same exact thing. It’s sort of crazy how so many will convict someone just based on rumors or ‘he said, she said’ b*llshit.
Now, I’m not saying Jameis Winston is innocent of the accusations, and I was never saying that but I was saying it would be good to wait for the facts to come out before we decided to convict him based on accusations.
Another point, which might be of interest, is criminal and civil courts use different criteria to determine responsibility and guilt. In criminal court, Winston would have to be found guilty, ‘beyond a reasonable doubt’ and in a civil matter; ‘preponderance of evidence’ is what matters. Kind of the way the way the National Football League’s attorneys found Tom Brady to be guilty because he more than probably did something. Not meaning to segue here but with regard to Deflategate, many suggest that if Tom Brady had nothing to hide, he would have handed over his phone. I’m completely opposed to handing over anything that is private property to an adversary because words get twisted and things get misconstrued.
Stepping back into the criminal justice arena, if you were accused of a crime would you opt to exercise your right to remain silent? Why or why not? Me, I’d never let go of my right to remain silent without the advice of counsel. By the way, my exercising my right to remain silent would not necessarily imply that I was guilty, but rather simply educated and aware that the criminal justice system is adversarial and it makes sense to navigate it with the advice of counsel.