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Clemens: The Lawsuit Deciphered

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I know this has been discussed to death, but I feel the need to flex my little lawyerly muscles, so indulge me, please.  Did Clemens file suit because he's innocent or because it's just good strategy?  Being the eternal optimist I am, I want to believe it's because he's innocent.  Unfortunately, the lawyer in me has forced me to face that he could be guilty and that this suit is merely strategy to save face.  This strategy would also include the somewhat strange release of the Clemens-McNamee phone call yesterday. 

So, I decided to do use those trusty legal skills I acquired (read: will be paying for until I die) in law school to pick apart the suit Clemens has filed.  For those interested in reading the suit, it can be found here.  For those too lazy or who simply have no interest in reading a legal document, I'll summarize and analyze below.  (Keep in mind, I practice commercial real estate finance and historic preservation law, so I'm merely dabbling in defamation law here.)

First, this is the longest complaint I've ever seen filed in a defamation case.  To be honest, I've only seen a few, but believe me, it's long-winded.    For those who don't know exactly what defamation is, here's a short explanation.  Defamation includes under its umbrella both libel (statement published in print or broadcast media) and slander (information spoken verbally).  Although it varies by state, defamation generally requires a statement of fact about a person that is made to a third person and causes the person the statement is about to be injured.  The injury is usually damage to the person's reputation or character which results in public ridicule or contempt.  There is a separate standard for those in the public eye, however.  If the alleged defamatory statement is about a public figure, the statement must be shown to have been made with "actual malice."  Actual malice is knowledge of the statement's falsity or reckless disregard for the falsity of the statement. So, moving on to the lawsuit Clemens filed.  The most interesting part about it that nearly half of the 14-page lawsuit is a recap of Clemens' career.  Do his lawyers think that pointing out what a terrific ballplayer he was means he can't possibly have used steroids?  Oh wait, that's the point of using steroids, isn't it?  I digress…  First, I was annoyed by the amount of "fluff" thrown in.  For example, the suit mentions that Clemens was "one of six children raised primarily by a single mother who worked several jobs to support her family."  Objection, Your Honor, but what is the relevancy?  I also like the quote included from former manager John McNamara after Clemens struck out 20 batters in a 1986 game: "I watched perfect games by Catfish Hunter and Mike Witt, but this was the most awesome pitching performance I've ever seen."  Throw in stories of his high school and college careers and it's like a two-for-the-price-of-one deal.  You get a Clemens biography and a defamation lawsuit!  The substance of the lawsuit, once you boil out the excess, is that McNamee's claims that Clemens used steroids and HGH in 1998, 2000 and 2001 are false.  Clemens reminds the court (and all of us) that his college team won the College World Series, that he was the AL MVP and the Cy Young award winner in 1986, that he twice has struck out 20 batters in one nine-inning game (1986 and 1996) and that he won the Cy Young and the pitching triple crown in 1997 – all before the alleged steroid and HGH use began in 1998.  Let's put that into context though.  The first sentence of Paragraph 15 in the lawsuit:  "In 1998, Clemens met Brian McNamee for the first time."  Not to be cynical, but what are the odds that IF (and I really do mean if) Clemens used steroids, he didn't begin until 1998 shortly after he met McNamee?  Who's to say that all those amazing feats were sans steroids?  In the grand scheme of things, he really hasn't made much of a point.  The only other notable highlights of the lawsuit focus on McNamee.  First, there is the description of McNamee's involvement as a suspect in a rape investigation in Florida.  Apparently Clemens stopped training with McNamee because of the investigation, but later agreed to train with him again after no charges were brought.  The relevance here is that it taints McNamee's reputation.  Keep in mind that the odds of getting any of that information out in a courtroom is slim.  There's a reason this lawsuit is available in PDF format all over the web.  In case you haven't picked up on it yet – this lawsuit is far more about swaying public opinion than it is about substantive legal issues.  The only real substance I saw was the allegation that federal agents coerced McNamee to say Clemens used.  Allegations like that can't be thrown around lightly, so plan to see more on this in the coming weeks and months.  All that being said, how does Clemens prove to the court of public opinion (which, let's be honest, is all that matters at this point) that he's innocent other than simply saying it?  Some have suggested he come up with alibis for the dates McNamee says he used, others say he take a lie detector test, and others say he provide medical tests from back then that would prove his innocence.  The first and the third may be impractical or impossible, even if he is innocent.  I think Clemens is far more worried about proving he's innocent to the court of public opinion than he is about proving so in a court of law.    Why file the lawsuit then?  Because when Barry Bonds and others were accused we all cried out that if he was innocent he would sue for defamation.  When those players did not, most of us thought that proved their guilt.  That would make filing suit a good strategy for Clemens in terms of convincing the public he's innocent.  It may also assist him when it comes time to appear before Congress.  It's possible he'll be unable to answer certain questions from Congress because of his pending suit.  Either of those reasons make the lawsuit the best course of action for Clemens.  So, whether he's innocent or guilty, I think he's doing all he can do at this point.  Only time will tell – or more disappointingly, time may never tell.  My guess is that we're all going to have to just mentally move past this so-called "Steroid Era" of baseball.  Personally, I can't wait for March and the promise of a new season to lift my spirits.  **And now for the legal disclaimer:  the information provided herein is intended only for general informational purposes. Nothing contained, expressed, or implied herein is intended or shall be construed as legal advice.  If you have questions about any law, statute, regulation, or requirement expressly or implicitly referenced herein, you should contact legal counsel of your choice.

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