Monday, January 7, 2008

Clemens Takes the Gloves Off

Clemens' attorneys are certainly going for the knockout punch early, attacking McNamee's credibility from the get-go. After setting him up as a liar for what he wrote in the 2000 New York Times article, they unleash this one in paragraph 20 of the complaint:

Get your popcorn kids, this one is going to be a humdinger.

28 comments:

Pete said...

I would imagine McNamee might be "embittered" after he was fired from his job because he was accused of something, "though no formal charges were ever brought against him". Funny, I just saw someone on TV last night complaining about a similar thing...

Diesel said...

I've got to say, this is all very surprising. And awesome.

What are the odds that this suit makes it past a motion to dismiss? .05 percent?

Shyster said...

Oh, it skies right past a motion to dismiss. He has articulated a claim that (at this stage he has no requirement to produce evidence; merely to articulate a claim that, if proven to be true, would entitle him to recover).

Getting past summary judgment seems a lock too. Based on what we know now, McNamee and Clemens are each going to swear out an affidavit claiming that their side of the story is true. That's a dispute of material fact, which is what is required to get to a jury trial.

Though much can change as things get going, at the outset, this seems like a settle-or-trial kind of case.

Which, as you point out, is about 11 shades of awesome.

Diesel said...

Something tells me Mr. McNamee isn't swinging the kind of cheddar one would need for a settlement with Clemens.

If this actually gets to trial, does the Pettitte admission play?

Jason said...

I don't think McNamee needs anything to settle and I don't think he can. Shyster, correct me if I am wrong, but didn't McNamee take immunity IF HE TOLD THE TRUTH and by capitulating, he'd incriminate himself?

I'm no lawyer (gee, ya think?) but seems that McNamee can't have it both ways.

And what's it going to take to get Roger going to settle in any way, other than McNamee admitting Clemens didn't use, which violates my initial point.

And yes, I might even say that it could even discover that elusive 12th level of awesomeness. Sorta like Dante's Inferno but for awesomeness. Maybe we can come up with the Paulie Walnuts 12 Levels of Awesomeness.

Shyster said...

Clemens doesn't want or need money. He needs the perception that he has prevailed in the veracity game, and would take zero dollars if he could achieve that. If I'm him, I play this out a while and try to negotitate a settlement with McNamee that allows him to crow to the world that he was "vindicated," even I get nothing in return. How that actually happens is hard to figure, of course, given that McNamee has every incentive not to come off his story, but there are a million creative ways to swing that kind of thing.

Pettitte would almost certainly be a witness who would be deposed. His public statement to the media from a couple of weeks ago wouldn't itself be evidence, but at a depositon, one of the lawyers would present those statements to him while he's under oath, and ask him to explain them more thoroughly (or to cross examine him about them). The sworn testimony that comes out of that would be admissible.

Shyster said...

Jason -- McNamee certainly can't admit he lied to the feds, because that would cause him a whole host of troubles, but it is going too far to say that his testimony with the feds requires him to vigorously defend civil litigation. If he can settle in some sort of confidential way, he can avoid running afoul of the prosecutors. Whether a confidential settlement does anything for Clemens is an open question -- he has to be able to claim vindication in SOME way -- but like I said above, two parties to a settlement agreement can craft things any way they want.

Matt said...

I have 2 thoughts:

1. Being that Clemens has far more money than McNamee, wouldn't it be exceedingly simple for Clemens to get whatever settlement he wanted? Especially since McNamee cannot afford to be found guilty of lying?

2. There are two things that clearly do not jive in the stories on both sides: if Clemens did not purchase the drugs through McNamee, why did he get him involved? Especially when Clemens good friend DID get the drugs from McNamee. But, on the flip side, if McNamee was earning immunity only if he told the truth, why would he lie? With this new news, there is a hint of a motive for McNamee to slander him. But it's not there yet. This story involving McNamee's release needs more details!

Diesel said...

Sorry, not trying to thread-jack here, but every answer creates another question. In the case of a settlement as you've described, where Clemens can claim vindication (which implies that McNamee recanted) what's the upshot in terms of McNamee's deal with the Feds? Could they use something like that to void the deal they made with him to get the testimony in the first place?

Diesel said...

Sorry, just saw that you sort of answered my question already. I'm a slow typer, apparently.

Shyster said...

Matt:

1. Money in terms of making litigation expensive for McNamee may or may not be relevant here in that it's possible McNamee's lawyers are doing this on some sort of contingency (for a counterclaim) or as a publicity loss-leader or something. In terms of settlement money, McNamee could simply say "pound sand" until the day he dies if he (a) is telling the truth; and (b) believes that there will be nothing worse in the world for him to come off his story to the feds. So Clemens gets a judgment against him. Screw it. Declare bankruptcy and let him just try to collect.

2. I think there is a lot of Clemens-McNamee interaction and training that is legitimate, no matter whose story you believe. McNamee says he only injected Clemens for a short period ending in 2002. He trained with him through this past season. Totally possible that Clemens got him involved simply as a trainer and that the drugs were a byproduct.

The whole "why would McNamee lie" question is the biggest reason why I tend to believe him (that and the passage in Canseco's book about how everyone joked about "B-12 shots." If you believe Clemens' suit, though, you can construct a picture where McNamee is providing drugs to some and not to others, but is pressured by the feds to say he was providing to Clemens. Though it seems a bit Hollywood, I have seen that kind of pressure applied to witnesses by federal agents in my own practice, so it's not totally implausible. Give up the whale that is Clemens so he doesn't have to do time for provided to Pettitte or whoever.

Shyster said...

Diesel:

I think the larger answer to that question lies in what, exactly, the terms of McNamee's deal was. Indeed, was there even a deal at all that can be violated? I mean, it simply could have been someone saying "tell the truth and we won't prosecute you. Probably." If that were the case he was poorly represented, but weirder things have happened.

Personally, I question the feds' follow-through with McNamee unless he totally admits that he lied his ass off to the feds.

williamnyy said...

The whole what does McNamee have to gain by lying argument confuses me. The answer is simple: a favorable plea deal. The only way McNamee can be penalized for lying is if it is proven he did.

Think of it this way: what does Clemens have to gain by lying? If he lies under oath in a deposition, he could be convicted of perjury. Are we to assume that McNamee wouldn't lie and thereby put himself at risk for jail time, but Clemens would?

soundsradio said...

A question might be:

Even if McNamee cannot prove he injected Clemens, do the feds have to prove that McNamee DIDN't Inject Clemens to prove he was lying and violating his immunity?

I think a good indicator as to McNamee's motives may be a book deal. If he does sign one then you have your motive for implicating Clemens. A book about Clemens steroid use is a lot more valuable than a book about Pettite's HGH use.

Anonymous said...

Back up the truck ... I haven't followed Rocketgate too closely, but hasn't Roger (and reporters) previously said that Clemens trained with McNamee through 2006?

Shyster said...

Someone correct me if I'm wrong (it's been a hectic day) but based on what I've read, he was training with him through 2007. During those earlier times, however, he was a Yankee employee, and it was from there that he was fired. He re-upped with Clemens as his personal guy later.

Anonymous said...

Right, so what does that make of paragraph 20? Clemens is trying to "refute" McNamee's claims by smearing McNamee's reputation but the veracity of even this statement is called into question.

Shyster said...

Hard to say what people think when they include stuff like this in a complaint, but my guess is that it's in there to indicate that McNamee had a reputation as a liar. When asked about why he'd still have him on payroll, Clemens would say "I paid him to help me do situps, not to be truthful."

williamnyy said...

In paragraph 21, the suit states that after several appeals from McNamee, Clemens resumed working with him and continued to do so through the summer of 2007. I don't the Clemens camp ever suggested Clemens terminated his relationship with McNamee after 2001 (which he probably definitely should of done).

Diesel said...

I don't the Clemens camp ever suggested Clemens terminated his relationship with McNamee after 2001 (which he probably definitely should of done).

A good dealer is hard to find, man. You don't just turn your back on a guy who delivers.

williamnyy said...

Except, for some reason, McNamee claims that Roger Clemens is the ONLY client to whom he did not supply the drugs. Could it be that if he stated he supplied the steroids (instead of Clemens), then he would have been asked to reveal contacts that he didn't have to show proof he obtained them. McNamee's allegations against Clemens seem specific enough to satisfy Mitchell, but vague enough to ensure that none of it can be verified. That is very suspicious to me.

jj said...

thats weird, because there are quotes and newsources that say clemens and pettitte stuck by mcnamee when and after those allegations came out. i remember reading a quote by pettitte saying 'mac's still my man' or something to that effect. so i have a hard time believing clemens' lawyers in that brief. also, charges were never brought up against mcnamee, so why is it guilty until proven innocent for mcnamee when clemens was just crying about it yesterday at the press conference?

and how come no one is making any deal about the squirmy way they taped the phone conversation and STILL got nothing out of it. one wonders what clemens wouldve admitted to if he didnt know it was being taped.

Aquaman said...

Shyster,

Any chance Roger Clemens is a "limited public figure" for purposes of this case?

For those not in the know, if Clemens were treated as a public figure, he'd have to prove "actual malice" (which is nearly impossible) to prevail against McNamee.

Celebrities aren't generally public figures for this purpose (the rule is designed to protect those who criticize public officials), but when a famous person becomes involved in a matter of genuine public concern, they can be treated as a public figure for purposes of comments related to that matter.

Shyster said...

Aquaman -- I'm almost certain that the concept of "public figure" for defamation purposes is not limited to politicians. Celebrities, no matter their profession, are typically subject to the public figure standard. Clemens would not doubt qualify as one as well.

But, on the off chance he didn't, he certainly would be a limited public figure purposes of the steroid allegations.

Aquaman said...

Why, then, are you so confident that Clemens's suit will survive a motion for summary judgment, or even a motion to dismiss?

Shyster said...

Motion to Dismiss should be easy: At this stage he has no requirement to produce evidence, he merely has to say that the was a lie and actual malice, and he has said that.

I may have been a bit too casual in saying that he gets past summary judgment easily yesterday (it was a hectic day). There are all kinds of possibilities regarding the type of evidence that could come out, and if it's Clemens' sole self-serving affidavit against a lot of evidence from McNamee, or alternatively, a lot of evidence from McNamee's side giving him a basis for believing that what he said was true, Clemens could certainly lose at summary judgment.

In the end I was probably guilty of that which I criticize others for: assuming that I knew what the evidence was when I really don't. At least all of it.

In the end: tough case for Clemens. Not unwinnable, but hard, and frought with peril.

Anonymous said...

Can you comment on the legality of taping a phone call without the other person's consent? I had thought this was verboten and definitely not something that could ever be used in court.

Shyster said...

In some states, it is legal to record a phone conversation as long as one party to the call knows that it is being taped. In other states, both parties have to know and consent to the recording or else it is illegal.

Both Texas (where Clemens was for the call) and New York (McNamee) are one-party knowledge states. As such, since Clemens knew the call was being recorded, the call was legal.

As for use/admissibility of the call, it depends on what it's being used for. The content of the call is hearsay, but some of it (i.e. Clemens' and McNamee's statements made against their own interests) would be admissible under certain exceptions to the hearsay rule. Other parts could be used to impeach inconsistent testimony provided later in depositions or at trial. Before any of that, the tape would have to be authenticated, etc., and McNamee's lawyers may make an effort to have it excluded from evidence entirely.

Basically, it's a can of worms, the sort of which often appears on law school Evidence exams. To be honest, I have to recheck these rules every time I have a trial or hearing, because they are quite confusing and easily forgetable if you're an absent minded dude like me.