Thursday, January 3, 2008

Clemens' Brinksmanship

Not much room to wiggle now, is there?
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!


Jason said...


I just blogged on this topic myself (and included a link to this blog entry!) and the one thing I don't know, from a legal perspective, is: what happens if McNamee truly has no "evidence", no smoking gun and it's just his word vs. Clemens' word?

What then? Would it even get to court or would it be dismissed prior?

Also, I am guessing ANY check that Clemens cuts to McNamee from here on out looks like "hush money", no?

Shyster said...

Thanks for the link, Jason.

If it truly does come down to a he-said/he-said, it will still go to trial assuming no one blinks.

The way it works is that, after discovery (depositions, document requests, etc.), one side can try to get summary judgment, which is a means of winning the suit before trial on the basis of the other side's lack of evidence. Essentially, the movant argues that there is no dispute as to the relevant facts, either because all sides agree what happened (yet disagree on the legal implications of it) or that the other side has no evidence to support it's claim. The operative phrase is "dispute of material fact." If there isn't one, case over. If there is one, a jury decides what the facts are at trial.

In this case, if Clemens and McNamee both present evidence -- and their own testimony under oath is evidence -- that they are right, there will likely be a dispute of fact, requiring a trial. Other evidence could include the testimony of third parties (e.g. Pettite saying he saw McNamee inject Clemens), documents, and any other number of things.

Ultimately, however, it's way too early to say. As you note on your blog, Clemens could be vague and parse words, or anything else that comes short of flat out calling McNamee a liar. If McNamee sues anyway, Clemens could do the same thing in depositions, and we could have a situation where the two aren't truly at loggerheads, and are instead talking past one another in oblique enough of a fashion that the waters remain muddy.

So the short answer (way too late) is that anything could happen, and we won't know the odds of this thing going to trial at least until a complaint is filed, and probably much later than that.

Jason said...

Craig, thanks for the type of answer that brings me back here daily. I'm going to add it to my posting as an addendum.

Much appreciated, as usual.

Ethan said...

This lovely analysis assumes there is no smoking gun yet to emerge. Is Clemens entirely confident of that?

Jason said...

Well, according to the posting:

"(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)."

I'm guessing if there WAS a smoking gun, McNamee would have brandished it by now. Though, the cynic in me can see him saving it for a "rainy day".

Shyster said...

If McNamee had a smoking gun and didn't share it with George Mitchell his immunity agreement is going to be toast. If he had one, he would have used it.

Now, whether someone like Andy Pettite or the Blue Jays trainers or whoever will come out and say "I saw Roger take a needle to the ass eight times," well, that's another story.

Mike D said...

Craig, any chance Clemens and his lawyers want McNamee to sue? Right now, Clemens really can't do anything to clear his name unless he can prove malice, which is difficult. Yet if McNamee sues Clemens, hasn't Clemens turned the tables on McNamee where he now has to prove that Clemens is lying? If he can't, then can't Clemens use that verdict/ruling/whatever to declare victory? It won't disprove the Mitchell Report findings, but it would be a public victory of sorts.

Shyster said...

While I don't necessarily believe that was the plan, Mike, I think that's exactly the effect of the McNamee lawsuit treat. If he sues and loses or, even better -- doesn't sue at all -- Clemens can declare victory. I think he and his advisors know that.

J.J said...

Just learned that Clemens and some of the gang will be called to testify before congress on 1/15--do you think this impacts the ju-jitsu? Sumu on a bigger stage?