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January 14, 2008

Stupid Lawyer Tricks

Clemens vs. McNamee Mailbag

by Derek Jacques

There was a lot of good mail about Tuesday's article. For all you non-attorneys out there, I apologize in advance if this discussion glazes your eyes over. Reader J.B. leads things off:

The way you write the piece on Clemens' defamation suit, you make it seem as though Clemens has the burden of proof on the issue of whether or not McNamee's statements were truthful. As I understand the law (and I'm no litigator), Clemens has the burden of proof as to the elements of the offense (the statement, the audience, the harm to reputation, etc.). If Clemens meets his burden, McNamee would then have the burden with respect to any defenses, including the defense that his statements were truthful.

It seems to me that Clemens has an easier path than you describe if McNamee has to prove the truthfulness of the statements than if Clemens must prove them false. The basic elements of defamation shouldn't be too difficult to prove, especially if it is pro se. It is still a he-said/he-said situation, but McNamee ends up on the wrong end of the burden of proof if he has to mount a truthfulness defense.

There's one element of defamation I didn't mention: since Clemens is a public figure (a distinction McNamee likely now shares with him) there's an additional requirement that he has to show to make his case: actual malice. That is, Clemens has to show that McNamee either (a) knew that what he was telling Mitchell was false, or (b) was "reckless" and didn't care whether it was true or false. Since McNamee claims that he was actually present for the incidents he related in the Mitchell Report, "reckless" defamation is more or less out the window. So, showing that McNamee's story is false is a basic element of Clemens's case--if Clemens doesn't prove it, McNamee likely won't even have to put forth a defense.

Reader D.Z. has another basic question about defamation:

Did McNamee 'publish' the statements? It seems to me, he reported them to Mitchell. Is that enough?

We tend to associate the word "publish" with the printed word, but in this context it simply means to make public--the term is used both in association with libel (written defamation) and slander (spoken defamation). So when McNamee spoke to Senator Mitchell--or any other person aside from Clemens--about Clemens's alleged steroid use, the information was considered "published." Clemens's complaint also alleges that McNamee knew or should have known when he talked to Mitchell that Mitchell would print and further publicize his claims.

Reader E.K. is up next:

While it's true that he filed in Texas ostensibly to get the home court advantage, I suspect that McNamee's lawyers will seek to have the case removed to federal court (which they can do because the two are citizens of different states). Again, for what it's worth, this would expose the case to a wider pool of jurors--not just Harris County--and also get the case away from an elected state court judge and in front of a federal judge.

This is a great point, although I suspect that Clemens would still be happier to be in a federal court in Houston rather than Central Islip or Brooklyn. Also, by commencing the suit in Texas, he's laying claim that it should be tried under Texas law, even if the case is transferred to federal court. Reader T.S. raises another procedural concern:

Is there any type of immunity from defamation for cooperating with federal authorities? It seems a little counterintuitive that you can get away with defaming someone if you lie to the law, but I would imagine public policy supports the idea of not discouraging cooperation with the authorities. Otherwise defamation would be a weapon against whistleblowers everywhere.

This one might take some explaining. Generally, in defamation law there is immunity for witnesses and litigants in court proceedings. I don't know about any specific protection for federal criminal witnesses like T.S. describes, but I suspect that the reason Roger Cossack isn't talking about McNamee's immunity on ESPN is because of the bizarre public/private partnership embodied by the Mitchell Report. Clemens isn't suing McNamee for what he told the federal agents, but rather for what he told Mitchell. You could argue that when he talked to Mitchell--a private citizen representing a privately-owned enterprise, not currently a federal or court official--McNamee was no longer acting in his capacity as a government witness/whistleblower, so he wouldn't be protected. Still, this is an issue where I'd love to hear from some attorneys with greater expertise in this area.

A couple of readers were more interested in the more strategic aspects of the litigation. First, Noah Hunter:

In the end, Roger Clemens only cares about his reputation, not the money, right? I don't see why a lawyer for one of the two sides does not suggest a (very, very) small settlement and the most ironclad confidentiality clause imaginable. Then, Roger can act like he has been avenged without actually creating the circus of deposition or trial testimony and McNamee can go his merry way secure that this matter is as behind him as possible. That would be my legal advice if I was representing either side.

Depending on the ramifications as to sworn testimony either to the Feds or Mitchell, I'd even suggest that rarest of creatures, an admission of liability, in the settlement agreement. I suspect, however, that that might open him up to perjury charges.

Reader Rick Bergstrom suggests some similar ideas:

There is another reason why Clemens would sue. Clemens has more financial resources than McNamee. He could potentially drag out the case, causing financial hardship to McNamee and force a settlement. If he is able to force a settlement, he in effect, gets a 'win' which could be used to reinforce his reputation. Some have also suggested that since Clemens is now involved in legal action, he can use that to protect himself when testifying to Congress.

Three issues here, I'll take the one that Rick raises in the last sentence of his email first. The moment I heard about Clemens's lawsuit the first thing that popped into my mind was "That's one way to avoid testifying before Congress." It's unlikely that the Committee would want to interfere with a pending lawsuit, creating the possibility that Clemens wouldn't have to testify, or would be able to arrange ground rules where he didn't have to address the specific claims in the Mitchell Report. In his press conference, however, both Clemens and his attorney said that Clemens would testify for the Committee, and that he would talk about McNamee's claims.

Next, a number of readers raised the disparity in resources between Clemens and McNamee. While it's an indisputable fact that the Rocket is loaded, celebrity lawsuits often operate on somewhat distorted economics. Representing a guy like McNamee can bring the type of publicity a lawyer literally can't buy, so that factors into the cost of representation. Even if we take McNamee's claims of poverty on face value (and perhaps we shouldn't), in a case like this, a firm will often value all the client's assets--real assets like a house or property as well as speculative assets such as film and book rights for the client's story--before taking him on, to make sure that there's some security they'll get paid. Finally, although lawyers seldom fight defamation cases on a contingency fee, there is the option of a counter-suit against a deep-pockets target (Clemens) that could, potentially, make the financial playing field a bit less lopsided.

Finally, there is the prospect of settlement. There's a lot we don't know in this case, such as the specifics of the U.S. Attorney's deal with McNamee, but it's hard to believe that a "win-win" settlement can be achieved between Clemens and McNamee. Unless there's an admission that McNamee lied, a settlement won't salvage Clemens's reputation (heck, even such an admission might not do the trick in some circles). If there's any public admission that McNamee lied, I would think the Feds have to go after him--this case is too high-profile for them to let it go. Doubtless Richard Emery and Rusty Hardin are more creative negotiators than I am, so maybe they can find a way to undo the Gordian knot without cutting it, but this seems like precisely the sort of case that can't be settled on a mutually beneficial basis.

Reader T.L. chimes in with questions about the specifics of Clemens's story:

It seems that an important fact not mentioned in your article is that Mr. Clemens has apparently stated that he was injected by Mr. McNamee during the period in question. At this time, Mr. McNamee was injecting other baseball players with steroids or performance enhancers. Mr. Clemens's claim is that in his case, Mr. McNamee injected him with vitamin B12 and pain killer, and not steroids.

Perhaps, you could articulate if there is any evidence that injecting vitamin B12 is efficacious for something? Did Mr. McNamee inject other players with vitamin B12 and pain killers? If the answer to these questions is no, it raises serious questions about the validity of Clemens's argument.

I think you've got it half right, T.L. It really doesn't matter for Clemens's case if vitamin B12 actually works for any of the many things people claim (over the years some have insisted that large doses of B12 increase metabolism, alleviate stress and depression, boost the immune system, and remedy hangovers). What would help him is evidence showing that ballplayers use B12 and lidocaine injections in the way he claims they're used, and that they receive them from personnel such as athletic trainers, personal trainers, and others who aren't doctors or nurses. Proving the latter would seem to be an uphill climb. I asked BP's own Will Carroll whether trainers do much injecting in the clubhouse; his response was that while athletic trainers do administer lidocaine using non-invasive techniques like iontophoresis, they leave the syringe work to team doctors.

Nonetheless, if Clemens can find other clients of McNamee's who will testify that they received B12 and lidocaine shots from the trainer, or if Clemens can produce testimony from doctors or trainers who will say Clemens received those injections regularly prior to meeting McNamee, that would help his case. Since both parties agree that McNamee gave Clemens injections, the details of their respective testimony--where were the shots administered, what types of needles were used, dosage, appearance of the substances injected, what complications, if any, Clemens experienced--will be crucial to establishing what really happened.

Andy Menown took issue with my Oscar Wilde comparison at the end of the article:

I loved the article. This approach is sorely lacking in most of the discussion concerning the intersection between baseball, drugs and the law. On the Oscar Wilde point, though, I think that it would have been prudent to mention the huge differences between the U.S. and British libel laws. The worst that the court can do to Rocket, should he lose, would be to assign him court costs and the defense's legal fees. Public opinion could be a lot harsher.

There are huge differences between U.S. and British libel laws, but the thing that did Wilde in was more the difference between sodomy laws of the 19th and 21st centuries. While money is all that Clemens stands to lose in civil court (as mentioned above, in addition to court costs and fees, he could also face a counterclaim by McNamee which would cost him a pretty penny), the real peril Clemens faces is from perjury charges that could be brought against him because of his testimony in court, in depositions, or before Congress next month. Barry Bonds wasn't charged with possession of steroids, or dealing, or tax evasion--he's facing trial for perjury. Marion Jones was just sentenced to six months in jail, not for possession or use of steroids, but for lying to federal officials and the BALCO grand jury. It's likely that neither athlete would have been criminally liable for the underlying steroid use of which they were accused, but it was their testimony that put them in hot water. If he doesn't watch out, Clemens could get caught in a similar perjury trap.

Finishing things off, reader R.A. thinks that I'm out of order:

I am a lawyer and enjoyed your analysis of the Clemens lawsuit, but, realistically, what is the possibility that the McNamee plea deal included a proviso that he provide evidence against Clemens? Please. So, in the spirit of your quotes, I have a paraphrase for you from And Justice for All:

'The one thing that bothered me, the one thing that stayed in my mind and I couldn't get rid of it, that haunted me, was why. Why would he lie? What was his motive for lying? If Roger Clemens is innocent, he's lying, why? Was it blackmail? No. Was it jealousy? No. Yesterday I found out why. He doesn't have a motive, you know why? Because he's not lying... And ladies and gentlemen of the jury, the Mitchell Report is not going to get that man today, no, because I'm gonna get him! my client, the Honorable Roger Clemens, should go right to f**king jail! The son of a bitch is guilty!'

Technically, the agreement likely does stipulate that he gives evidence against Clemens--the way these documents work, usually, is they have a copy of the witness's statement attached, and the agreement basically says, "You agree that you gave this statement of your own free will, that it's all true, and that, if we ask you to, you would testify to it in court. We will not use your statement to prosecute you for any crimes, but if you go back on your story, we can use it against you, as well as prosecute you for perjury and whatever else we can think of." The statement--which in McNamee's case would include the things he said about Clemens and Pettitte, as well as any details he might have given about his supplier, Kirk Radomski--is typically given before the agreement is put on paper. So the question isn't what the agreement says, it's whether or not the agents made it clear to McNamee that he had to put something in that statement about Clemens or he'd go to jail, thereby possibly pressuring him to lie. In the interest of point/counterpoint, I'll respond to your paraphrase from an Al Pacino movie with one of my own:

Look, the IRS guys, they promised me a deal. So I made up a lot of stuff about Roger Clemens, 'cause that's what they wanted. But it was all lies. Everything. They said Roger Clemens did this, Roger Clemens did that. So I said, 'Yeah, sure.' Why not?

In some ways, that quote works as both point and counterpoint.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

Related Content:  Roger Clemens,  The Who,  Trainers,  D.j. Mitchell

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