Clemens takes the loss

Last year, when Roger Clemens first filed suit, I noted that one of the reasons why defamation lawsuits are suckers’ games for the PR-conscious is that so often the outcome is determined by things other than whether the actual statements at issue are true or false. There are many exceptions and nuances to defamation law, and there’s a huge and often impossible-to-meet burden of proof when public figures like Clemens are involved. The result: oftentimes even lies, if properly-intentioned or uttered in a certain context, are deemed acceptable under the law.

I’m fine with this, of course, because these exceptions and nuances are what help protect free speech. However, if you’re a high-profile defamation plaintiff they can be dangerous, because the general public — about whose opinion you are concerned — is very likely to view even a procedural or technical loss as vindication of the allegedly defamatory statement. Put more simply, when it comes to public opinion, it’s about wins and losses, and even if a loss is due to something other than who was or wasn’t actually lying, the public will deem the loser the liar.

This is what Roger Clemens is about to find out:

A U.S. District judge in Houston dismissed most of Roger Clemens’ defamation lawsuit against his former personal trainer Brian McNamee Thursday, agreeing that the court did not have jurisdiction to hear most of the case and that McNamee’s conversations with George Mitchell were protected by his immunity deal with the government.

Judge Keith P. Ellison agreed that because McNamee accused Clemens of using HGH and steroids while he was in New York speaking to Mitchell and then repeated the accusations to reporter Jon Heyman, who is also in New York, the Southern District in Houston does not have jurisdiction.

No, the suit is not totally dead, but given that Clemens has learned another hard fact of defamation lawsuits in the past year — that bringing one often brings one more bad publicity than having let the original defamatory statement lie in the first place — he would be well-advised to cut his losses and quit now. He’s Roger Clemens though, so he’ll probably just rub some Icy Hot somewhere, bark at his lawyers and continue fighting on. We need people like that in this country — you never know when we may be invaded by the Martians or something — but it won’t be a good thing for him personally.

Anyway, assuming things do end here, Clemens is way, way worse off than he would have been had he never started this business to begin with. Despite the fact that nothing in this court’s ruling actually establishes that McNamee was telling the truth about Clemens, Clemens’ loss on technical grounds will forever be treated by the public as confirmation that he was the liar. And maybe he was the liar — I’d say the odds are in favor of that — but if he didn’t file this suit he could have at least gone through life informally telling people his side of things and working quietly to rehab his public image.

Such a tack would have been tantamount to a no-decision in which he pitched poorly but no one really blamed him for the ultimate outcome. Those things are forgotten and, rightly or wrongly, aren’t held against a guy by the fans at large. Now? There’s a big L next to his name, and people will always consider him to be the loser, even if he had no run support and the runs were unearned.

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  1. Dickness said...

    “he would be well-advised to cut his losses and quit now. He’s Roger Clemens though, so he’ll probably just rub some Icy Hot somewhere, bark at his lawyers and continue fighting on. We need people like that in this country—you never know when we may be invaded by the Martians or something—”

    That is really funny stuff as usual, but I suspect he would misinterpret something the Martians did, similar to how he thought Piazza was somehow able to intentionally brake his bat causing the fragments to nearly hit Clemens, so Clemens would likely be the cause of us going to war with the Martians. He probably carries around a baseball in case anyone gives him any guff so he can supply some chin music. Of course maybe the Martians could use a brush back to make sure they realize we mean business.

  2. MooseinOhio said...

    My wife and I have a three year old and are constantly working with her on her spelling.  We make games of it and use lots of opportunities to work on her spelling but I was highly impressed the other night when I asked her to spell hubris and she responded – C L E M E N S – and then said she needed to go potty.

  3. bigcatasroma said...

    Craig, as someone who did not excel at Civil Procedure, I’m not sure—but wouldn’t a highly paid lawyer *know* that the S. Dist. of Texas would throw out the case, due to a lack of diversity—Mitchell Report (NY), Heyman article (NY), Clemens plays for Yankees (NY)—hey, let’s sue in Texas???

    Or, is that exactly what you’re saying—they thought the case in TX would get tossed, tried anyway, and, from a PR perspective, are now gonna argue nationally that their case was tossed on a technicality, hoping that the masses will think Roger innocent, only the masses (in your opinion) will think he is a liar, since he has a really bad lawyer hiding his lies?

  4. Craig Calcaterra said...

    Bigcat—It’s been a while since I’ve looked at the pleadings, but wasn’t this originally filed in Texas state court?  Either way, my sense of it was that Clemens was worried that he was about to be sued in NY by McNamee—whose lawyers had threatened to do so if he went on 60 minutes—and just raced to the courthouse in Texas in order to beat him to the punch.  I don’t know whether they cared about what might happen later, but rather, wanted to be first filed because it’s always better to be first filed, and then hoped to overwhelm McNamee with money and PR or something.

  5. bigcatasroma said...

    I’m not sure about the state court bit.  But that would make the most sense; again, otherwise Clemens, Hardin, et. al. look mighty foolish, publicly, having this thrown out of Federal court.  You’re saying that, by filing first, they would have leverage over settlement negotiations, etc.?  But why wouldn’t they still consider the possibility of this tactic failing?  Especially if Roger, you know, actually did what McNamee accused him of?

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