Monday, January 7, 2008

McNamee's Lawyer Does the Moonwalk

In my profession, it's often the case that we have to either back away -- or run away -- from a position or a case or a client from time to time. Unfortunately, lawyerly egos often prevent some of us from doing so in an open and forthright manner because, in the minds of some of my colleagues, changing course or even changing their mind represents an unacceptable risk that someone might say we were -- horrors! -- wrong about something.

What to do? The moonwalk, baby. Slowly distance yourself from that which has become unpleasant while never actually being seen to turn your back on the problem. The beauty of the moonwalk: everyone who counted on you thinks you're right there with them until at some point they happen to look up and realize you're gone.

Ladies and Gentlemen, the moonwalk in action:

Last week, attorney Richard Emery said, "Anything says that implies or states that Brian is a liar will cause him severe damage." But after watching Clemens waffle his way through 12 minutes with Mike Wallace last night, Emery said, "He definitely called Brian a liar in so many ways, it was tantamount to defamation. But the problem is, it was so unbelievable, it's going to be hard to prove that Brian was damaged."

Got that? McNamee's lawyer thinks Clemens was so unbelievable, that a jury may actually believe him, so they're not going to bother suing.

This is a short, right-after-the-fact article, but its implications are huge. McNamee and his lawyers are clearly backing down. If he's not willing to put it on the line to sue Clemens over the 60 Minutes interview, what will he possibly be able to provide a Congressional committee looking to slap Clemens with a perjury rap? Nothing, that's what. Clemens will now be able to say pretty much anything he wants to Congress later this month, secure in the knowledge that McNamee is in no way willing to forcefully contradict him.

The end game of this three week chess match is near, and Roger Clemens is poised to win handily. He has denied McNamee's charges, McNamee has now blinked when challenged, and unless Pettite or someone provides first-hand, eyewitness testimony calling Clemens a liar -- fat chance -- Congress will have no basis for questioning whatever story Clemens decides to tell them, true, false, or otherwise. The cement that constitutes the record of this whole affair is beginning to set, and given what will appear to be effectively unsubstantiated charges forcefully rebutted in numerous contexts, it is setting in favor of Clemens.

In other words, the little ju-jitsu strategy I described last week was a success, and somewhere there is a lawyer/sensei on retainer to Clemens who has earned every cent of the money he has charged.

Likewise, there are several commentators out there -- including every Hall of Fame voter who has denied McGwire because "if the charges were false he would deny and/or sue" -- who, sooner or later, are going to have to either vote him in to Cooperstown or else explain why they too have done the moonwalk away from their previous position.

Update: Clemens has now sued McNamee. Seems like a bridge too far to me, especially given that McNamee seems to be standing down. Only time will tell if this is the final nail in McNamee's coffin or, rather, a reenactment of the Wilde-Queensberry case.


Anonymous said...

Your analysis regarding McNamee's stance re Clemens statements is based on the false premise that McNamee has something to gain by suing Clemens. What McNamee was clearly trying to avoid was having the whole rape investigation come out, which he knew would come up if he sued Clemens and they got into the deposition phase. However, now that Clemens has let his ego overcome good sense (falling for the pressure applied by the media who consistently said he had to sue or everyone would believe he used) and has sued McNamee, I think you will see a different approach. Of course, in the end, both sides know neither will win anything- Clemens can't prove he didn't use, and McNamee can't prove that Clemens did use. And of course, neither can tell their attorney if they are lying because then the attorneys would not be able to allow them to testify falsely in the deposition or trial. Down the road, after depositions etc, about 1 year or so, Clemens will drop the suit as the issue slowly fades into the background.

Shyster said...

While I agree with your overall point regarding the potential futility of either side suing (i.e. why I call Clemens' filing "a bridge too far"), you can't ignore the fact that McNamee's lawyers are probably responsible for the lawsuit in the first place. If they don't threaten to sue last week, I think there's zero chance that Roger sues last night (probably having done so in order to preempt McNamee filing in New York instead of Texas).

My guess: Roger's lawyers jumped the gun. If they knew that McNamee was going to walk it back after 60 minutes last night, maybe they don't file themselves.

Anonymous said...

Seems like a bridge too far to me, especially given that McNamee seems to be standing down

unless, of course, Roger is telling the truth.

Shyster said...

Not necessarily. It's wholly possible to lose a defamation action even if you're the one telling the truth. It's a high standard. There are reasons other than the veracity of the statements made against you that can cause you to lose (i.e. can't show damages. Can't show actual malice, etc.).

Even if he's telling the truth, if Clemens loses the case on the technical grounds, the general public is only going to remember that he lost the case, and in the public's mind, that will make him a liar and a 'roider.