And, so Clemens takes yet one more turn into the mountain. [sarcasm] Can hardly wait for all the dirt yet uncovered by McNamees lawyers[/sarcasm]

Anyone ever notice Rusty Hardin's resemblance to Robert Blake in Lost Highway?

Roger Clemens upped the ante of his defamation lawsuit against an ex-trainer by accusing him in court papers Tuesday of intentionally inflicting Clemens with emotional distress.

He only realized that he was upset now? This just feels like Clemens is loading up on charges in the hope of getting one to stick.

McNamee, Clemens' chief accuser of steroid and growth hormone abuse, has asked U.S. District Judge Keith Ellison to dismiss Clemens' suit because the Texas court does not have jurisdiction over the New York man, Houston is not the proper venue for this case and because he had immunity in a federal criminal investigation for the statements.

How on earth would this insulate McNamee in a civil matter? Can a lawyer explain this one to me?

The suit says McNamee defamed Clemens to Pettitte in Texas by telling Pettitte that Clemens had used steroids and hormones.

Except that Pettitte said that Clemens told him about his steroid use - even if Clemens said afterwards that Pettitte "misremembered".

I think I hate everyone involved in this mess.

This lawsuit shouldn't be able to survive a motion for summary judgment.

In case there was any question about whether Hardin was really able to make good legal judgments, here's the clincher that he cannot.

In case there was any question about whether Hardin was really able to make good legal judgments, here's the clincher that he cannot.

Or, once again, he's got a client who is demanding certain things be done, and Hardin is just making the best argument available to him.

Clemens is taking the Falwell route in an attempt to create an end-around defamation suit. He is a public figure, and Rich is absolutely right.

Please God, just make it stop. I'll be good. I promise.

Or, once again, he's got a client who is demanding certain things be done, and Hardin is just making the best argument available to him.

Hardin does not need to file this in any way, shape, or form. This is not a criminal case (at least, this part is not). And I know a lot of lawyers who would walk away from a case like this (or wouldn't have taken it) because they value their rep more than the spotlight. Hardin, obviously, is not one of them...which was the point I was making before.

Saying 'his client insists he do it' may or may not be accurate, but either way it does not mean that Hardin looks like he's focused on the right things in my view. There is a point where you have to tell your client to move on and/or to try and reduce the damage, not just file ever-less-likely motions.

Below is some of Clemens's intentional infliction claim.

The Pettitte reference below is to 1999/2000 and 2003/2004 conversations between McNamee and Pettitte during which McNamee told Pettitte that Clemens had used steroids and HGH.

The SI.com reference below is to the January 6th Jon Heyman interview.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
54. Clemens incorporates by reference the facts set forth above.
55. McNamee falsely told Pettitte, the Mitchell Commission, and SI.com that Clemens had used steroids and HGH.
56. McNamee intended to cause Clemens to suffer severe emotional distress by making the false accusations.
57. McNamee’s conduct in making the false accusations to Pettitte, the Mitchell Commission, and SI.com was extreme and outrageous.
58. McNamee’s false accusations proximately caused Clemens to suffer severe emotional distress. Clemens seeks damages for these injuries from McNamee in an amount to be determined by a jury.

Gee, why didn't Mark McGwire follow all that advice to loudly and publicly rebut his accusers, in court if necessary? What a dope!

Good luck winning an IIED claim, Roger!

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
54. Clemens incorporates by reference the facts set forth above.
55. McNamee falsely told Pettitte, the Mitchell Commission, and SI.com that Clemens had used steroids and HGH.
56. McNamee intended to cause Clemens to suffer severe emotional distress by making the false accusations.
57. McNamee’s conduct in making the false accusations to Pettitte, the Mitchell Commission, and SI.com was extreme and outrageous.
58. McNamee’s false accusations proximately caused Clemens to suffer severe emotional distress. Clemens seeks damages for these injuries from McNamee in an amount to be determined by a jury.

Ray, thanks for finding and posting that.

I still remain somewhat confused, however, as to how McNamee allegedly telling Pettitte that Clemens used steroids and HGH can constitute intentionally inflicting emotional distress on Clemens when Pettitte already thought that Clemens hald told Pettitte that he was using steroids/HGH. The claims relating to telling SI.com and the Mitchell Commission make more sense, even if I don't think he has a reasonable chance of winning them.

Regardless, this entire claim seems like Clemens' attorney is running out of effective methods to defend his client's reputation.

I think I will file an IIED claim against Saint Roger.

The only person who has inflicted emotional distress on Clemens is Clemens.

A couple of interesting items from Clemens's response to McNamee's motion to dismiss:

In this case, McNamee falsely accused Clemens of using steroids. The use of steroids without a prescription is a crime. See Anabolic Steroids Control Act of 1990, Pub. L. No. 101-647, 101 Stat. 4789 (1990) (codified as amended in scattered sections of 21 U.S.C.). Thus, McNamee accused Clemens of committing a crime. No innuendo or inference needs to be made to reach this conclusion. Accordingly, McNamee’s false statements
that Clemens used steroids are defamatory per se.

In addition, as stated above, a statement is per se defamatory if it injures a person in his office, business, profession, or occupation. See Morrill, 226 S.W.3d at 545. If ever there was a classic case of a false statement injuring another’s profession and business by exposing the person to public hatred, contempt, ridicule, or financial injury, this is it. McNamee’s false accusations that Clemens used performance enhancing drugs went to the heart of Clemens’s work ethic, his accomplishments, and how he played thegame of baseball. This, of course, has had a direct and harmful impact on Clemens as a professional baseball player.

McNamee argues that any injury to Clemens’s business is inapplicable because the conduct only related to his “former” career. Such a contention flies in the face of reality. To say that Clemens is no longer involved in the business and profession of baseball or that false accusations about steroid and HGH use have no effect on Clemens’s present business and profession (and legacy) is yet another falsehood. First, there is no evidence or support for the contention that Clemens is no longer involved in baseball. Indeed, Clemens has a long-term professional services contract with the Houston Astros that becomes effective upon his formal retirement from baseball. See Amended Cmplt. at 4 ¶ 9. Second, and perhaps more important, it completely ignores the foreseeable and far reaching impact McNamee’s false statements can and will have. McNamee cannot
underestimate the value of Clemens’s untarnished past accomplishments, deeds, and reputation on his continued involvement in both Major League Baseball and the related business and professional ventures that flow from such involvement. See Amended Cmplt. at 4 ¶ 9. As such, McNamee’s false and defamatory statements alleging that Clemens used steroids and HGH has injured (and continues to injure) Clemens’s business and professional reputation and is defamatory per se.

Anyone ever notice Rusty Hardin's resemblance to Robert Blake in Lost Highway?

Is he in my house right now?





Who the #### are you?!?!?!?!?

McNamee argues that he is entitled to absolute immunity for anything he told the Mitchell Commission, even if he intentionally and maliciously lied. In effect, McNamee is asking the Court to grant him a license to lie. McNamee’s position should be rejected. His statements to the Mitchell Commission are not privileged in any way. McNamee suggests that absolute immunity applies to the statements he made to the Mitchell Commission. “Such immunity, however, attaches only to a limited and select number of situations which involve the administration of the functions of the branches of government, such as statements made during legislative and judicial proceedings.” Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987). Here, nothing supports the application of such immunity.

The Mitchell Commission’s investigation was an independent investigation on behalf of a private entity. See Amended Cmplt. at 10-11 ¶ 31. It is undisputed that the Mitchell Commission’s investigation was an investigation by a private citizen and a private law firm for a private client. See id. The Mitchell Commission’s report states as much: “This investigation was an independent inquiry on behalf of a private entity.” Ex.

Thus, McNamee’s false statements to the Mitchell Commission are not immune because they did not “involve the administration of the functions of the branches of government.” See Hurlbut, 749 S.W.2d at 768. Moreover, McNamee cannot convert the Mitchell Commission into a government
agency. Contrary to McNamee’s assertion, federal investigators did not use the Mitchell Commission to develop their investigation. The Mitchell Report itself contains a letter conclusively establishing this.

...

In light of Mitchell’s unequivocal statements, McNamee’s admonition that this Court not “second-guess the prosecutors’ decision” to use the Mitchell meetings to develop their investigation is misleading at best.10 Not only are McNamee’s attempts to treat the Mitchell Commission as an extension of the federal BALCO investigation unsubstantiated, they are conclusively disproven by Mitchell’s own admissions.

Accordingly, McNamee’s statements to the Mitchell Commission are not entitled to any form of protection and he may be held responsible for the consequences of his false and defamatory accusations.

Roger Clemens claims, "I'm a ten year old girl."

Regardless, this entire claim seems like Clemens' attorney is running out of effective methods to defend his client's reputation.

You're figuring this out, I think!

The only person who has inflicted emotional distress on Clemens is Clemens.

So's your Mom.

You're figuring this out, I think!

I've had this figured out for a long time. It doesn't mean, however, that Hardin is incapable of making good legal judgements, as you originally implied.

There is a point where you have to tell your client to move on and/or to try and reduce the damage, not just file ever-less-likely motions.

There's the issue of Clemens possibly not fully and properly briefing Hardin on all issues before Hardin took the case. There's also the issue of Hardin, already acting in the role of Clemens legal representation, potentially telling Clemens to move on and/or to try and reduce the damage and still being told to proceed in the most agressive manner possible. In case you haven't noticed, Clemens is a fairly stubborn individual.

Beside, what else can Hardin reasonably do in this case to protect the interests and reputation of his client? Walking away, as you suggest, sure won't do it - and walking away also won't do much for the reputation of Hardin either.

So's your Mom.

She kicked ass when she was alive.

I don't think you understand how the process works, frankly, in terms of taking a case and proceeding through the process. It is simply not the case that Clemens can tell Hardin to 'proceed aggressively' and Hardin has to do so, for example. These are choices for Hardin and he has chosen poorly, seems to me, consitently in this matter.

The bottom line is that Hardin has taken a damaging, but shaky and unsupported, initial allegation and turned it into a criminal investigation of his client (fueled by congressional pressure, no less), filed two civil actions that seem more likely to be dismissed pretrial than accomplish any of his objectives, and has managed to make the slimy, dishonest Brian McNamee appear to a great majority of the public as the more reputable and reliable figure in this case. That's tough to do, but they've managed to do so.

We have no idea what combination of lack of investigation, lack of disclosure, client misrepresentation, and lack of judgment caused this. But I think most people can say at this point that Hardin has not succeeded in what he was hired to do. If you want to continue to attribute that all to Clemens that's your prerogative, I guess, but I think at this point very few practicing lawyers will share that opinion. Judgment on how the process will play out and what the risks are is a crucial part of being a litigator and of advising clients. It's not all about doing whatever the client might suggest or desire.

It's all the more inexplicable because from what I have hard from practicing attorneys in Texas, Hardin had an impressive reputation before he undertook this case.

Gee, why didn't Mark McGwire follow all that advice to loudly and publicly rebut his accusers, in court if necessary? What a dope![\quote]

No joke. I figured an athlete pursuing Clemens strategy would have a rough time, but not this rough.

So when is McNamee bringing that lawsuit he kept promising?? lmao .. effing liar. If Roger waffled that much on his lawsuit, you all would be calling for his head.

it kills me that you sheep have put all your eggs into this guys basket. a rapist no less, a fricking rapist, trying to save his skin ... This is comical to watch.

I hope Roger cleans his clock in court, i do .. It'll never clear Rogers name for sure, because well sheep will always be sheep, but I hope this McNamee gets destroyed.

consider it karma for rape

has managed to make the slimy, dishonest Brian McNamee appear to a great majority of the public as the more reputable and reliable figure in this case. That's tough to do, but they've managed to do so.

surely you are talking about the MSM right?

I keep waiting for McNamme to appear on a "this is sportscenter" commercial.

Why should McNamee file a lawsuit now? The statutory period isn't up and Clemens is doing his pretrial discovery for him.

I don't know whether or not McNamee raped anyone and neither do you. All we do know is that the prosecutors in the case declined to file charges.

Roger Clemens upped the ante of his defamation lawsuit against an ex-trainer by accusing him in court papers Tuesday of intentionally inflicting Clemens with emotional distress.

God, I presume, has sovereign immunity, else Roger could have Rusty the Boy Lawyer sue him for intentional infliction of breathtaking stupidiy.

From McNamee's motion to dismiss, filed in March:

Under Texas law, slander per se is limited to a narrow band of statements: (1) imputation of a crime, (2) imputation of a loathsome disease, (3) injury to a person’s office, business, profession, or calling, and (4) imputation of sexual misconduct.” Fiber Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1161 (5th Cir. 2006). The complaint is defective because it does not alleges which per se category the allegedly defamatory statements fall within.

And, to the extent Mr. Clemens seeks to allege that Mr. McNamee’s alleged statements caused injury to Mr. Clemens’s business, a per se claim is inapplicable as the conduct related only to his former career. Cf. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1281-82 (3d Cir. 1979) (holding that doctor’s statements that football player had potentially fatal disease did not fall within per se category as plaintiff’s “career as a football player was over . . . and the article . . . was not published until [after that point]” (citing Restatement (Second) of Torts, § 573, cmt. c (2002) (stating that it is not within per se category to impute misconduct “of a public officer whose term has expired”))). In fact, in 1998, 2000, and 2001 (when Mr. McNamee states that he injected Mr. Clemens), it was not even a violation of the Major League Baseball rules at the point, under the terms of the collective bargaining agreement, for a player to take steroids or HGH.

So when is McNamee bringing that lawsuit he kept promising?? lmao .. effing liar. If Roger waffled that much on his lawsuit, you all would be calling for his head.

My god, if you could somehow contrive to be the filling in a big ol' Roger-&-Barry-Bonds sammitch, you'd think you'd died & gone to heaven, wouldn't you?

Eeeeewwwww.

I don't know whether or not McNamee raped anyone and neither do you.

we have a police report and numerous eye witness that he raped somebody, not to mention the date rape drug at the scene, and in the girls blood stream. the guy was fired within the next few days, and charges were mysteriously dropped. He also denied knowing a yankee player who was in the jacuzzi with him at the time, even though he was employed by the yankees... last i heard they don't fire people for consensual sex.

as for why he doesn't file his lawsuit now, you would have to bounce that off of him and his attorneys. He kept threatening to sue, but has backed off.

My god, if you could somehow contrive to be the filling in a big ol' Roger-&-Barry-Bonds sammitch, you'd think you'd died & gone to heaven, wouldn't you?

Eeeeewwwww

what are you talking about?

we have a police report and numerous eye witness that he raped somebody, not to mention the date rape drug at the scene, and in the girls blood stream. the guy was fired within the next few days, and charges were mysteriously dropped. He also denied knowing a yankee player who was in the jacuzzi with him at the time, even though he was employed by the yankees... last i heard they don't fire people for consensual sex.

Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers.

as for why he doesn't file his lawsuit now, you would have to bounce that off of him and his attorneys. He kept threatening to sue, but has backed off.

That isn't necessary. From a tactical point of view, the prudent move is to let the free pretrial discovery take place and then make a determination.

#31 .. Ray, that motion doesn't make any sense, because Rogers career was not over, and as has been pointed out to us many times over by the witch hunters, it doesn't matter if it was against the rules because it was illegal.

Unless I am missing something ..

Could someone please explain these rape charges people keep talking about in these threads? I haven't found anything saying McNamee was convicted or even charged with a rape. If someone could just point me to an article, I would appreciate it.

what are you talking about?

Is your crush on Bonds over, then? Fickle!

Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers.

that may very well be true, i am no lawyer. thanks.
But I am constantly reminded around here that in the court of public opinion, a jury of ones peers is meaningless. Much in the way that Roger has already been convicted, so has McNamee. I would even go so far as to say that there is more evidence that McNamme raped somebody than there is that Roger used steroids.

That isn't necessary. From a tactical point of view, the prudent move is to let the free pretrial discovery take place and then make a determination.

fair enough, but i should remind you that McNamee was the guy who said he was going to sue. He put multiple deadlines on a date that he would be suing, and as of late May, he has done nothing.

If it is tactical for him to not sue now, I understand.

Is your crush on Bonds over

the guy is just a ballplayer, nothing more. He happens to be my favorite ballplayer, yes.

Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers.

Huh? If A rapes B, but B doesn't tell anyone, there will be no conviction. But A has still raped B.

OJ Simpson is a murderer even though he was acquitted. He's just not a convicted murderer.

#37 here you go

The records released Tuesday by the St. Petersburg police show McNamee was suspected of raping a woman he had met at the Renaissance Vinoy Resort in October 2001. The Yankees were in town to close out the regular season against the Tampa Bay Devil Rays, and many players and support staff were staying at the upscale resort.

McNamee was having sex with the woman in the resort's pool and didn't stop when confronted by security, the documents say. Police were notified. When they arrived, they found McNamee had helped the woman out of the pool and get dressed, according to the documents. Groggy and incoherent, she was taken to the hospital, where the documents said she was found to have GHB, the "date-rape drug," in her system.

The woman told detectives she could not remember details of the encounter in the pool. She said she did not give McNamee permission to have sex with her, and witnesses told detectives they had heard her saying "no" during the encounter, according to the documents.

Detectives later recovered some of her jewelry, an empty beer can and a water bottle containing GHB at the side of the pool.

Police interviewed McNamee hours later, according to the documents, and he denied having sex with the woman or knowing Yankees batting practice pitcher, Charles Wonsowicz, who was also in the pool. McNamee refused to submit a saliva sample for DNA analysis, the documents said.

Although the state attorney's office decided not to press charges, the accusations ended McNamee's career with the Yankees.

The Yankees did not give a specific reason for terminating McNamee.

This lawsuit shouldn't be able to survive a motion for summary judgment.

This is what I'm hoping for. Good chance.

For those interested, Patrick Thorton did an exhaustive look at the Clemens defamation lawsuit couple of weeks ago.

The Clemens Defamation Lawsuit: Litigation Marches On

Thorton teaches “Baseball and the Law” at the University of Houston Law School and Sports Law at Rice University and South Texas College of Law.

Thanks Maury,

I don't know whether or not McNamee raped anyone and neither do you. All we do know is that the prosecutors in the case declined to file charges.

That's because the most useful witness was dazed and unresponsive while it was going on. Kind of like the media, while Mighty Mark and Slammin' Sammy were saving baseball.

So those of you who believe that McNamee's not a rapist don't believe that Clemens used steriods either, right? I mean he's never been convicted. And vice versa, for that matter.

Kind of like the media, while Mighty Mark and Slammin' Sammy were saving baseball.

Cool! Anyone accused of steroid use automatically becomes golden in your world, right?

Quick -- someone accuse Hitler of having used steroids. I just want to see what happens.

That's because the most useful witness was dazed and unresponsive while it was going on. Kind of like the media, while Mighty Mark and Slammin' Sammy were saving baseball.

And your proposed alternative to our current legal system is?

I don't think you understand how the process works, frankly, in terms of taking a case and proceeding through the process. It is simply not the case that Clemens can tell Hardin to 'proceed aggressively' and Hardin has to do so, for example. These are choices for Hardin and he has chosen poorly, seems to me, consitently in this matter.

The bottom line is that Hardin has taken a damaging, but shaky and unsupported, initial allegation and turned it into a criminal investigation of his client (fueled by congressional pressure, no less), filed two civil actions that seem more likely to be dismissed pretrial than accomplish any of his objectives, and has managed to make the slimy, dishonest Brian McNamee appear to a great majority of the public as the more reputable and reliable figure in this case. That's tough to do, but they've managed to do so.

What alternate actions would you have taken then? And, once the accusation came out and Clemens chose to defend himself, what do you think were the odds that he wasn't going to be criminally investigated, given the way that Congress has always after the highest profile players available? Also, in the absence of a defense from Clemens, don't you think that most people would have assumed that McNamee would be the more reliable and reputable figure? After all, if Clemens doesn't fight McNamee's accusations, most people will assume that McNamee is telling the truth.

We have no idea what combination of lack of investigation, lack of disclosure, client misrepresentation, and lack of judgment caused this.

You're dead right on this.

But I think most people can say at this point that Hardin has not succeeded in what he was hired to do.

Not succeeding is different from not taking the best path available - Hardin may have taken the best possible path after still advising Clemens that it likely wouldn't succeed.

If you want to continue to attribute that all to Clemens that's your prerogative, I guess, but I think at this point very few practicing lawyers will share that opinion. Judgment on how the process will play out and what the risks are is a crucial part of being a litigator and of advising clients. It's not all about doing whatever the client might suggest or desire.

Again, can you offer an alternative path of defense which Hardin could have taken which would have resulted in a higher chance of clearing his client, knowing that Clemens appears determined to protect his reputation?

Karma.

This is Clemens' punishment for helping Woody Harrelson beat the crap out of Randy Quaid.

"Clemens: Is it possible in any way, then, to sue you people?

LAWYER: Sue who?

Clemens: You. I'm asking you for help.

LAWYER: Sue who, me?

Clemens: Yes.

LAWYER: Why do you wanna sue me?

Clemens: Well I'm trying to explain, I had a terrible accident.

LAWYER: What's that gotta do with me?

Clemens: I'm asking you for help. And maybe I could sue for punitive damages that you're giving me.

LAWYER: I'm giving you?

Clemens: Yes.

LAWYER: Me?

Clemens: Yes.

LAWYER: What did I do to you?

Clemens: Punitive damages here.

LAWYER: I'm...you...I'm a lawyer. What did I do to you?

Clemens: The side car smashed into a pole and everything. I'm trying to explain this to you.

LAWYER: Okay. And you wanna sue me?

Clemens: Why not?

LAWYER: Me?

Clemens: Sue everybody.

LAWYER: Sir. I can't help you.

(Pause.)

Clemens: Hello?

LAWYER: Yeah.

Clemens: The people that you work with and handle--I probably will sue them too because I'm not getting--

LAWYER: Who do I handle? Who do I...? I dunno what you're talking about.

Clemens: I had a terrible accident, sir!..........Oh, I'll just call Rusty Hardin."

And then there's also the fact that THIS IS THE BIGGEST PAYDAY THAT HARDIN WILL EVER SEE IN 4 LIFETIMES!

I mean, c'mon. You have a client who is filthy rich, unbelievably stupid and incredibly contemptible. Clients like that don't exactly fall out of the tress, yoou know. Who wouldn't milk that baby for all it was worth? Hardin can retire to his newly minted yacht and sip pina colada's in St. Bart's after this bad boy is signed, sealed and delivered.

The Kevin view of lawyering.

The everybody-who-isn't-a-lawyer view of lawyering.

Fixed.

And then there's also the fact that THIS IS THE BIGGEST PAYDAY THAT HARDIN WILL EVER SEE IN 4 LIFETIMES!

I mean, c'mon. You have a client who is filthy rich, unbelievably stupid and incredibly contemptible. Clients like that don't exactly fall out of the tress, yoou know. Who wouldn't milk that baby for all it was worth? Hardin can retire to his newly minted yacht and sip pina colada's in St. Bart's after this bad boy is signed, sealed and delivered.

His previous clients include, but are not limited to, J. Howard Marshall II, Venetian Hotel/Las Vegas Sands, Arthur Andersen LLP, Dow Jones, ExxonMobil, Rudy Tomjanovich, Steve Francis, and Wade Boggs. For some reason, I doubt that this guy is representing Clemens because he needs the cash.

True. That's as laughable a notion as Charles Barkley running short of ...

Oh.

Kind of like the media, while Mighty Mark and Slammin' Sammy were saving baseball.

Cool! Anyone accused of steroid use automatically becomes golden in your world, right?
Quick -- someone accuse Hitler of having used steroids. I just want to see what happens.

Somebody's overdosing on stu-PEDs.

Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers.

You should go back; you missed a day. Rape is a factual term, not merely a "legal" one, and it certainly has meaning prior to a conviction.

Of course, McNamee may not be factually guilty of rape -- but if your entire argument is that he wasn't convicted, then that rather undermines this whole circle jerk of a thread attacking Clemens, who also hasn't been convicted of anything.

You should go back; you missed a day. Rape is a factual term, not merely a "legal" one, and it certainly has meaning prior to a conviction.

Of course, McNamee may not be factually guilty of rape -- but if your entire argument is that he wasn't convicted, then that rather undermines this whole circle jerk of a thread attacking Clemens, who also hasn't been convicted of anything.

Not only was McNamee not found guilty of rape, he wasn't even prosecuted, which was the point I made in my initial post on the issue. I only brought up the word conviction in response to the person who cited a police report as evidence of the rape, when in fact police reports often describe allegations that are not factual when tested.

I wasn't making an argument. I merely stated a fact: "I don't know whether or not McNamee raped anyone and neither do you."

I never said that Clemens has been convicted of anything, yet you react as though I did, so maybe you are the one jerking something.

Did law school teach you that how to reason in such a mutilating narrow way? If so, I'm not the one who needs a refresher course.

Except that Pettitte said that Clemens told him about his steroid use - even if Clemens said afterwards that Pettitte "misremembered".

I think I hate everyone involved in this mess.

Actually, Pettitte said that Clemens told him about hGH use, not steroid use; people keep lumping them together as PEDs, but for legal and baseball purposes there are distinctions, so we should be precise.

This lawsuit shouldn't be able to survive a motion for summary judgment.

Really? How do you figure that? Before any discovery has been taken, you've concluded there are no genuine issues of material fact in dispute? If you want to argue about the scope of Texas's long arm statute, that's another story, but that would relate to McNamee's MTD, not a motion for summary judgment.

I wasn't making an argument. I merely stated a fact: "I don't know whether or not McNamee raped anyone and neither do you."

No, you also stated, "Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers." It was that faulty argument of yours, not your agnosticism about the truth of the rape charge, that I was addressing.

(I didn't even address your odd claim in 35 that McNamee didn't file a counterclaim because the discovery is "free.")

I never said that Clemens has been convicted of anything, yet you react as though I did, so maybe you are the one jerking something.

No, I didn't react as though you "said that Clemens had been convicted"; I reacted as though you had treated Clemens as guilty despite his lack of conviction, sneering at Clemens/Hardin/Clemens' lawsuit in, inter alia, posts 4, 15, and 25.

Not only was McNamee not found guilty of rape, he wasn't even prosecuted, which was the point I made in my initial post on the issue.

He could still have committed rape nonetheless. But regardless of whether he did so, he still comes out looking pretty bad here.

In any event, I'm more interested in the fact that he confessed to lying to the authorities during that investigation.

I only brought up the word conviction in response to the person who cited a police report as evidence of the rape, when in fact police reports often describe allegations that are not factual when tested.

I wasn't making an argument. I merely stated a fact: "I don't know whether or not McNamee raped anyone and neither do you."

Gambling Rent was assessing the available evidence on McNamee and coming up with a conclusion. Just like you're doing when you deem Clemens guilty of steroid use. But, using your own logic, "I don't know whether Clemens used steroids and neither do you." There. I'm glad we all agree that we're not allowed to deem someone guilty unless there has been a conviction.

I never said that Clemens has been convicted of anything,

But that's exactly the point. You were applying different standards to judge McNamee (no conviction, so we're not allowed to say he raped anyone) and Clemens (GUILTY AS NOT CHARGED!!).

Actually, Pettitte said that Clemens told him about hGH use, not steroid use; people keep lumping them together as PEDs, but for legal and baseball purposes there are distinctions, so we should be precise.

You're right, in that I appear to have confused the two. However, the legal question still stands - how can Clemens use the example of McNamee telling Pettitte about Clemens' PED use as a partial basis of an emotional distress claim when Pettitte was of the impression that Clemens had already told him of his HGH use?

No, you also stated, "Last I heard in law school, legal terms like rape only have meaning subsequent to a conviction by a jury of one's peers." It was that faulty argument of yours, not your agnosticism about the truth of the rape charge, that I was addressing.

(I didn't even address your odd claim in 35 that McNamee didn't file a counterclaim because the discovery is "free.")

It wasn't an argument, it was a response to a post.

It wasn't a claim, it was merely a supposition of his strategy.

No, I didn't react as though you "said that Clemens had been convicted"; I reacted as though you had treated Clemens as guilty despite his lack of conviction, sneering at Clemens/Hardin/Clemens' lawsuit in, inter alia, posts 4, 15, and 25.

I have posted numerous times on these interminable threads on this topic that my posts about Clemens's PED usage is an opinion, not a statement of fact. I would suggest that you offer a similar disclaimer.

As a side note, David, would you mind not mixing quotes from me and from someone else in the same response (#60). It makes it appear as if I said something that I didn't. Given your interest in clarity and precision, I think you'll understand my concern. Thanks in advance.

He could still have committed rape nonetheless. But regardless of whether he did so, he still comes out looking pretty bad here.

In any event, I'm more interested in the fact that he confessed to lying to the authorities during that investigation.

I have already acknowledged that he could have committed it. (see the quote, infra).

Gambling Rent was assessing the available evidence on McNamee and coming up with a conclusion. Just like you're doing when you deem Clemens guilty. But, using your own logic, "I don't know whether Clemens used steroids and neither do you." There. I'm glad we all agree that we're not allowed to deem someone guilty unless there has been a conviction.

"Available evidence." Did he (or you) read the police report? Did he (or you) interview the alleged victim or the alleged perpetrator? If not, you are really overstating your case (or lack thereof).

In the legal sense, I absolutely agree with that point about Clemens and I have said so on this and other threads. Everything else is just an opinion, be it about McNamee or Clemens.

But that's exactly the point. You were applying different standards to judge McNamee (no conviction, so we're not allowed to say he raped anyone) and Clemens (GUILTY AS NOT CHARGED!!).

Again. No, I haven't. I have acknowledged that my statements about Clemens's alleged PED usage are an opinion, and I have done so in previous discussions on the topic with you.

I trust you would acknowledge that your assessment of Clemens's (or McNamee's) credibility is an opinion as well.

Really? How do you figure that? Before any discovery has been taken, you've concluded there are no genuine issues of material fact in dispute? If you want to argue about the scope of Texas's long arm statute, that's another story, but that would relate to McNamee's MTD, not a motion for summary judgment.

Because I don't believe it is possible for Clemens to establish the essential elements for the tort of intentional infliction of emotional distress under any plausible set of facts.

There. I'm glad we all agree that we're not allowed to deem someone guilty unless there has been a conviction.

If only, Ray, you would extend this courtesy to OJ.

Rich:

Because I don't believe it is possible for Clemens to establish the essential elements for the tort of intentional infliction of emotional distress under any plausible set of facts.

Well, you didn't say that McNamee could obtain summary judgment on this particular claim; you said that the lawsuit shouldn't survive an MSJ. Assuming you meant the former, I don't see why not; you don't think that a campaign to falsely implicate someone in criminal activity in such a way as to destroy his professional reputation, including going so far as to fabricate physical evidence to poison the public against that person, is extreme and outrageous conduct which could cause Clemens emotional distress? (I am not judging the case; I am merely viewing the facts in the light most favorable to the non-moving party.) I don't know if Texas courts would view the IIED claim as merely duplicative of the defamation claim and dismiss it for that reason, but that isn't your argument; your argument is that this course of action can't constitute IIED at all. And I don't see why the elements couldn't be met. And to respond to someone else's argument above, assuming McNamee's allegations are in fact false, Falwell isn't going to protect him; he obviously flunks the actual malice test.

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(Oh, and sorry, Ryan; I didn't mean to make it appear as if you that you had said words that others had said.)

Agreed. He's representing the guy because he WANTS the cash.

Kevin - do you ever speak from a foundation of knowledge?