February 22, 2008
Stupid Lawyer Tricks
Clemens v. McNamee--After the Hearings
Not every legal option is wise. The example that always sprang up in my own experience was in divorces: men would get involved in divorce proceedings, and almost invariably, their "friends" would start spreading rumors that the soon-to-be ex-wife had been involved in extramarital affairs, and that maybe some or all of the couple's children may have been the result of those alleged affairs. The men would then go to a lawyer with the question: can I have my kids DNA-tested?
The answer to this question was usually "yes," but that wasn't the end of the discussion, because a legal right to a DNA test doesn't speak to the real-world consequences of such an action. If these guys went forward with the testing, and their suspicions were proven correct, they might get out of paying child support, but they could also lose their parental rights over children they'd raised their entire lives. If they were wrong, they risked destroying their relationship with the children, if those children should ever find out about the test. The question wasn't so much "can I do this" as "is it a good idea?"
I bring this up to start off with because Roger Clemens could still go ahead with his defamation lawsuit against Brian McNamee after last week's congressional hearing, but is it really a good idea? Clemens's suit wasn't ever about the money he could get from McNamee if he won-McNamee isn't ever likely to have enough money to make it worthwhile for a multi-millionaire like Clemens to sue. The goal of the litigation was to rehabilitate Clemens's reputation, a goal that, after last week's hearing, might be largely out of reach. Clemens faced many committee members, most notably the committee chairman, Representative Henry Waxman of California, who clearly believed the Rocket to be a liar. The committee members who aimed their most pointed questions at Clemens-almost exclusively members of the Committee's Democratic majority-were able to point up some apparent inconsistencies in Clemens's deposition that reduced him to head-spinning levels of hypothetical doubletalk about what Andy Pettitte would have told him and what Brian McNamee would have told him that really didn't make any sense.
Worse than any damage that Clemens might have done to himself was the damage done by his workout buddy, Andy Pettitte. Pettitte, who wasn't involved in the hearing, testified in his deposition that Roger Clemens confessed HGH use to him in "1999 or 2000." Now, even though everyone involved in the hearing spoke glowingly of Pettitte's credibility-with Waxman going so far as to claim that Pettitte's "consistent honesty makes him a role model, on and off the field"-as Will Carroll pointed out last week, his testimony was not as clearcut as some on the committee made it seem. Pettitte seemed certain, if extremely vague, about Clemens's HGH confession, but what few details he gave were contradictory. Pettitte originally claimed the conversation between him and Clemens took place in 1999, but he also thought that McNamee was on the Yankees' training staff at the time. It took a lot of gentle prodding by the attorneys interviewing Pettitte to remind him that McNamee was still on the Blue Jays' staff in '99, and to obtain the concession that the conversation might have happened in 2000. Pettitte provided an affidavit by his wife backing his story, but her recollection was no more definitive than his was, and the affidavit seemed to merely recycle his deposition testimony. Initially, Pettitte claimed to have believed, in 2005, Clemens's claim that he had misremembered the earlier conversation. About two hours of leading questions later, he was sure that he hadn't. Pettitte's account also disagreed with the stories of C.J. Nitkowsky and McNamee with regard to some events and conversations they claim he witnessed or participated in.
Reading the deposition, I didn't get the impression that Pettitte was a terribly good witness. He seemed earnest and cooperative, but his recollections weren't terribly strong, and his cooperativeness could be a liability under cross-examination. That might be one reason that the committee excused him from last week's hearing, despite the entire hearing revolving around his testimony: in his deposition, he'd already told the story the Committee's attorneys wanted to hear, so no one wanted him in the hearing room to potentially complicate things.
Despite those caveats, Pettitte's allegations that Clemens confessed to HGH use changed the geometry of Clemens's civil case. We go from a "he said/he said" battle of credibility between Clemens and McNamee to a "he said/they said" battle, with Pettitte and his wife corroborating McNamee's story. Pettitte's follow-up discussions with McNamee after the two HGH talks with Clemens-and his impression of McNamee's reactions-are consistent with what you'd expect in the situation: McNamee upset at first that Clemens blabbed to his goody-two-shoes pal, then disgusted at Clemens's attempt to convince Pettitte that he wasn't talking about his own HGH use. For his part, Clemens didn't bring much to the table in the Capitol that would rebut that story.
Last week, Clemens refused to attack Andy Pettitte, insisting that his friend must "misremember" their conversations. That explanation didn't seem to hold much water for the Committee, or for the public at large. If Clemens wants to continue with this defamation suit, he'll have no choice but to try to cast doubt on Pettitte's story, by any means available. So the question for the Rocket-with apologies to the worst Irish brogue to win an Academy Award-is: What are you prepared to do?
A few bullet points to wrap up this conversation: