Roger Clemens will face a lawsuit if he says in a “60 Minutes” interview that his former personal trainer, Brian McNamee, was not truthful when he said he injected Clemens with performance-enhancing drugs, a lawyer hired by McNamee said Wednesday . . .
. . . “He’s got a chance to protect himself,” said Emery, who is based in New York and specializes in libel and defamation actions. “We’re not going to sue him if he doesn’t do it. But if he does it, we’re going to sue him.”
A while back I suggested that Clemens didn't have all that much to gain from suing McNamee for defamation. Reason? There is a lot to lose when you sue for defamation, even if you are telling the truth:
- Defamation cases are hard to win, damages are often small, and most defamation lawyers won't take cases on contingency;
- Defamation lawsuits often create bigger audiences for the false statements than the false statements enjoyed in the first place;
- Even when the statements made by the defamer really are false, the plaintiff may whiff on one of the other essential elements of the suit (e.g. actual malice; damages; a showing of a privileged utterance by the defendant). Right or wrong, if the plaintiff loses a defamation lawsuit, most people will conclude that the defendant was telling the truth even if he wasn't.
The fact that Clemens went on a PR onslaught instead of walking to the courthouse suggests to me that he was advised by some folks who hipped him to all of these obstacles. By boldly going on 60 Minutes, he has performed a little legal ju-jitsu, and has made them McNamee's problem.
Worst case scenario for Clemens is that at some point, a couple of years from now, a jury will conclude that he lied on 60 Minutes (though given that McNamee's lawyer has said that "McNamee had no documentation, like canceled checks or e-mail messages, implicating Clemens," that is far from certain). If so, he cuts a small check -- at least small to Clemens -- and releases a statement saying that the jury got it wrong. Call me crazy, but it strikes me that being found to have lied by a plaintiff and a jury he can rail against may be a preferable PR position to having been called a PED user in the Mitchell Report.
Best case: McNamee, even if he is telling the truth, fails to carry his considerable burden of proof or, even worse, ends up losing his legal team over financial issues and the case just melts away. If that happens, Clemens declares victory, the national media does an about-face, and the Rocket is voted into Cooperstown in his first year of eligibility.
A gamble? Sure. But one without a terrible downside. If he does nothing, Clemens becomes a pariah. If he slams McNamee on Sunday night, he at least has a shot at redemption. If I were in Clemens' shoes, it's a gamble I'd probably take.
Update: Newsday will be running an article assessing Clemens' curious tactics in Sunday's edition. The reporter, John Jeansonne, must have been takin' peyote yesterday because he decided it would be a good idea to interview me for the piece. Tune in to Newsday on Sunday to see just how out-of-his-depth an Ohio blogger/lawyer can appear under the big city media microscope!