Tuesday, January 8, 2008

PR and Pretending

A lot of people have asked me why I think Clemens' legal team played the tape. Sure, the stated purpose was to merely provide the facts which could answer all of the questions that were swirling around after the fact of the phone call was reported (how noble of them to help the media in such a way), but the obvious answer is that his legal team thought that the tape made McNamee sound like a liar or, at the very least shifty. They're not 100% wrong about that -- he does come off sketchy at best -- but I don't think it was nearly as damning or clear cut as I would have wanted such a thing to be before making such a risky PR move on behalf of one of my clients.

Which leads me to question why Clemens is having his lawyers -- as opposed to some other spokesman type -- play the PR game in the first place. Sure, I'll admit that Rusty Hardin is a smarter cookie than I am -- and he's certainly more experienced -- but in the handful of cases I have had in which there has been media interest, I have found that there is very little upside to lawyers playing the publicity game. For the most part, the media simply isn't going to be as credulous of what a lawyer has to say as he would some spokesman or flack because they know going in that the lawyer is playing advocate in a way they don't typically acknowledge publicity types to be doing (even if they are). As a lawyer, it's much harder to get your message out just the way you want it, and it almost always comes back to bite you in some way later, be it it in a deposition, or in pretrial conference with a judge or what have you.

Then again, when I have a case, I'm usually interested in, you know, winning it as opposed to winning the news cycle. For Clemens, the usual logic is turned on its head: it's the PR war that is everything, and the lawsuit is the petty annoyance which he probably wishes would go away. I say this because I think Clemens jumped the gun in filing it, thinking he had to in order to thwart McNamee's threatened suit which, in hindsight, probably wasn't going to ever come. For now, though, he has to pretend that he filed it out of a fit of pique and righteousness.

Of course there is all kinds of pretending going on here. The lawyers are pretending to be public relations men. The most dominant and aggressive player in decades is pretending to be a victim. The man who ratted out his biggest client is pretending to still be his friend. Congress is pretending to be protecting children, those in positions of power within the game during the rise of steroids in baseball are pretending that the Mitchell Report provides closure of some kind, and many in the media are pretending that they know more than they do.

The only thing we know for sure? That it's all going to get crazier before sanity is restored.


Jason said...

Craig, I noted this in a comment on a previous posting of yours, but I keep going back to this as a possible outcome:

Is this being set up so that we get this on January 16th:
McNamee: I did inject Clemens with PEDs
Clemens: No you didn't
McNamee: Yes, I did.
Clemens: Did I know you were doing that?
McNamee: No.

Then we'd here the UNKNOWINGLY defense jump up and Clemens can feign outrage that McNamee was injecting him without his knowledge or permission. It's the only way that both of them can escape with telling the truth. Am I way off base here?

Brendan said...

Now you're talking my language. I was originally going to post a few questions for you since I'm not a lawyer (and I still will below), but then I was going to editorialize a little bit about how bad of an idea it is for Clemens to use lawyers as his PR folks.

I'm a political operative, for lack of a better term, and dabble in PR. In my experience, lawyers, perhaps owing to their need for diligence in the courtroom, tend to be somewhat conservative as it pertains to addressing PR and media concerns.

That isn't to say they're right or wrong in doing so. You hit the nail on the head -- lawyers are more concerned with winning the case, i.e., being "right" and ascribing blame or guilt to those who are "wrong." And they should be, that is their job, after all.

In my world, letting allegations of this sort fester for a month is tantamount to malpractice. For all intents and purposes, the PR war is already lost for Clemens, regardless of what he does from this point forward.

Issuing first a statement, then a canned video, then waiting for a friendly to interview him and only then holding a press conference was certainly a lawyerly way to go, but also certainly not the best path to preserve Clemens' persona and reputation.

Conservatively, Clemens had 3-7 days max to respond following publication of the Mitchell report. The ideal PR scenario would have had him at a podium the next day with the lawsuit following shortly thereafter (although its effectiveness is specious at best).

I have a theory about this -- too many lawyers were involved in the media response. As you said (I'm paraphrasing), lawyers have their place, but that isn't one of them. This leads me to believe that they had to get their story straight, so to speak, and could not do so quickly with any confidence.

I suspect that Clemens' legal team also has someone who fancies themself a James Carville/Karl Rove-type spinmeister. Again solely from my experience, when I find a lawyer who thinks this way, I tend to see someone who is a bit egotistical and arrogant (always right) and who also takes a few too many risks PR-wise. In short, they take the worst from both professions. In this case, the "risk" was not responding immediately. If I had to, I'd bet on this person being one of Clemens' agents.

Unfortunately for Clemens, lawyers are lawyers and PR people are PR people for good reasons -- they specialize at what they do and neither do the job of the other in a terribly effective manner.

All of this isn't to say that Clemens can't repair some of the damage. Our history is filled with people who successfully seek redemption. That being said, his popularity and respect will never, ever return to the levels he enjoyed before the Mitchell Report was published.

And finally, that leads to my legal questions. Since the lawsuit was filed, there's been something that's nagged me about it.

I understand why he's suing McNamee -- he made the allegedly defaming statements and even if Clemens is a public figure, he'll claim they were knowingly false, which satisfies malice (correct?).

Doesn't the logic also follow, then, that Clemens could sue MLB and Mitchell himself for publishing the statements? If you follow Clemens logic, it seems to me that malice could be satisfied under the "reckless disregard" provision.

If that is the case, then the suit benefits Clemens in a multitude of ways.

I believe, as you might also, that the suit was merely filed as a way for Clemens to say "Look everyone, I'm fighting back," from which Clemens obviously benefits.

In addition, McNamee is the low-hanging fruit and doesn't have the resources to defend himself that Mitchell/MLB would have. Clemens can simply outlast him and essentially "win," even if it never goes to trial.

Finally, Clemens gets to exact revenge against McNamee for naming Clemens. This has already started with the rape suspect paragraph. In addition, the suit has the potential to destroy McNamee financially and he is already destroyed professionally.

(Editorializing) To me, it shows the pettyness of Roger Clemens. He lives in a Clemens-centric world and no further proof of that is needed than the pages of his accomplishments in the lawsuit. He has but one interest and when that interest is threatened in any way, he will go for the jugular. He reminds me of some of my high school teammates. Well, he reminds me of them if they'd never grown up.

Oh, and if I was McNamee, I'd take the seven-figure deal and use every penny of it to fight Clemens for throwing me under the bus.(Righteous editorializing complete)

Shyster said...

Jason -- I don't think you're WAY off base, but I think it's pretty unlikely given that Clemens is on record as saying he was taking B12. Because of that -- for no one to be lying -- McNamee would have to say that he TOLD Clemens he was taking B12. If he says THAT, then it begs the question as to why he didn't tell the Mitchell folks and prosecutors that he lied to Clemens about what he was taking.

Shyster said...

Brendan --

WOW! Thanks for your comments. Very insightful, and provide a lot to chew on. I'll admit, I don't understand PR (lawyers and PR people are natural enemies in many ways) but I agree that when the problem is primarilly legal, the PR people should get out of the way, and when the problems is primarily PR (as this is for Clemens) the lawyers should get out of the way.

As to your legal question, I don't think a lawsuit would lie for Clemens against Mitchell. Mitchell was merely repeating in report form that which he was told by McNamee, under circumstances in which there was a reasonable basis for Mitchell to believe that McNamee was being truthful (i.e. threat of making false statements by the feds). If you have that kind of reasonable basis -- especially once you're in public figure land -- you're pretty much home free, and I think Clemens' lawyer's statements yesterday underscored that he believes that to be the case.

brendan said...

I have to admit that I've sparred with many lawyers over issues such as these. I also have to admit that was a ridiculously long comment I posted. If I had a blog (something I've considered starting), that would've been a post.

After I wrote it, I thought of a very short, very simplified breakdown of what I said -- "Lawyers" (and by extension the Courts) think in logical arguments...people generally don't.

Shyster said...

"I have to admit that I've sparred with many lawyers over issues such as these. I also have to admit that was a ridiculously long comment I posted."

We may have just had a breakthrough, though! Despite your fighting with lawyers, you have come to emulate us by using several hundred words when a couple will do!

One of us . . .one of us . . . .


Osmodious said...

One thing that has struck me about the media coverage is the blatant hypocrisy, and of course their total unawareness of their own hypocrisy. I mean, when the report came out they all harped about Clemens...then they all harped about the way his denial was done (i.e. 'if it was real it would be from him not his lawyer'), then when he makes his own denial in person they harp on why isn't there a lawsuit and such...now that he has filed suit they are piling on for that.

What the hell?

I came to a startling realization the other night. How DARE Clemens? Really. How DARE he attempt to defend himself in ANY way. How DARE he stand up for himself, regardless of guilt. How DARE he sully the great game of baseball by attempting to force us to confront the possibility that he might not have done anything wrong.

Next time, Roger, forget standing up for yourself...just go out and strangle some dogs with your bare hands. Then you'll get candlelight vigils, celebrities speaking out in your defense and people wearing "Free Clemens" t-shirts.