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If he drops the case, it's that he's only fighting it on his skewed vision of being "upstanding". We're seeing that that's far from the truth.
If so, Hardin had to know that his reputation would take a hit too, and it has. I don't understand why he would be willing to endure that.
The way the conversation goes is something like this: "You are filing a defamation lawsuit. Truth is an absolute defense to the suit. That means the defense is going to be entitled to ask and entitled to pry into all kinds of personal information regarding areas such as past drug use, medical records and possibly financial information." "Are you sure you want to go through with this because they will be digging into many otherwise private, privileged areas?"
The lawyer has no duty or even responsibility to "investigate" his client as the above posts imply. It is a very rare situation indeed where the lawyer does that. In my office, sometimes on multi million dollar suits we will run a background check on our own client before accepting the case. That is only to determine if they have any crimes of "dishonesty" that would become admissible. We do not, however, investigate the personal lives of our clients nor is a lawyer expected to take those actions.
No, no and no. Rich's post seems to imply that this is the lawyers fault. Setting aside the implications of that statement for a moment, this is not Hardin's fault for not doing his "due dilligence."
My point isn't that Hardin is primarily at fault, it's that he has an independent stake in the way this litigation unfolds because this case exemplifies that "very rare situation."
With a suit of this magnitude (in terms of national attention), and a client with Clemens's deep pockets, any attorney would be a fool not to independently investigate all the issues in this case. After all, we know that Hardin's investigators examined McNamee's background. Consequently, there was no reason not to investigate Clemens's background as well. Representing a client without knowing as many of the pertinent facts as possible, given the potential impact of this case on any lawyer's reputation, is problematic to say the least.
So it's not a matter of duty, it's a matter of sound legal practice given the high stakes involved.
That's a non lawyer talking. I would say that there is not a single law firm in the country thta would have turned up what the New York Post turned up. Even with a full investigation. Does Clemen's affair with Mindy Mcredy have anything to do with the defamation suit? Would that have stopped Clemens from filing it even if they had discovered it? Your premise is unsupportable. Its 20/20 hindsight. The lawyers are not at fault here in any way whatsoever. (and I love to second guess other lawyers). Its not with the relm of probability or even sound judgment to investigate Clemens sexual history before the filing of a defamation lawsuit. Sorry. Your argument was a stretch from the start and no amount of justification will make it plausable.
No, it's not. I'm an attorney, and I made this point to colleagues before these revelations became known, so it's 20/20 foresight.
That's your opinion, but when you consider what Cochoran, Shapiro et. al. were able to unearth about Mark Fuhrman history of possible racial animus, I think your opinion is wrong.
But don't take my worrd for it, here are the views of others for attribtution:
From the Daily News
Also from the Daily News:
From the same Daily News article:
So let me get this straight, other attorneys in addition to myself think that the lawsuit should never have been filed.
Sources tell the Daily News that Clemens's advisors have insulated him from obtatining what may be objective information, yet "[t]he laywers are not at fault here on any way whatsoever."
Sorry. It's your argument that is a stretch.
If you want any credibility on this issue, cite to another source.
If you want any credibility on this issue, cite to another source.
Your point is that the experts they cited aren't experts?
At least I cited something beyond my own opinion.
Even granting your point arguendo that the Daily News has an agenda, much of what they have reported about Clemens has been confirmed. The McCready affair is one example.
As a lawyer, I have to agree with Stratman that no law firm would investigate their client at the start of the case. The first reason is simple, you have to trust your client to tell you the truth. The odds are, Clemens simple chose (as is his right) to keep his ghosts in his ever-expanding closet.
The second reason is the key one: you only do the work that your client pays you for. If Clemens was not willing to pay his legal team to try to dig up dirt on him, the firm would not do an investigation.
To make the assumption that his legal team did not warn him of the possible repercussions is laughable. Hardin is one of the nation's top attorneys. I trust that he knows better than the baseballprimer legal crew how to handle a case. It is simply not "sound legal practice" to provide pro bono services for uber-rich baseball players.
Would you link to a source(s) that refutes their p.o.v.?
Again, any time a case involves a public figure who is the subject of nationwide attention, a lawyer needs to factor in the consequences of intense media scrutiny into their decision making calculus. I don't think Hardin did that. Granted, that implicates a microscopic number of cases, but it was foreseeable from the outset that Clemens would a prime example.
The old adage is trust, but verify.
I highly doubt that Clemens wanted to manage this case on the cheap given the scrutiny that his investigators are giving McNamee's background.
What's his net worth? > $100 million? I think he can afford it.
Did you listen to (or watch) Clemes's initial press conference in which Hardin played the tape of the telephone conversation between Clemens and McNamee? I don't think it furthered his client's interests.
I don't doubt that Hardin is a first-rate lawyer, but this case involves matters that go far beyond law, and imo, Hardin has not handled the situation very well.
It's not like Hardin had to take the case.
What responsibility does Clemens have in this? What is your basis for assuming that Hardin did not warn him the skeletons will start pouring out of his closet? Would an investigation even have been necessary if Clemens had been honest with his legal team?
Clemens is primarily responsible for the way this case has unfolded. I don't doubt that he lied to Hardin. My point is that a case like this is so rare and potentially offers such a high risk/reward for Hardin in non-monetary ways that it was incumbent on him to independently verify Clemens's veracity.
I concede that an investigation wouldn't have been necessary if Clemens had been candid with Hardin from the outset, which is the reason I hold Clemens primarily responsible. I only depart from your point of view in that I think it was foreseeable that Clemens would lie, and that Hardin had a reasonable basis for wanting to protect himself.
My sense is that Roger Clemens understood from the beginning what the general public (though not a lot of BTF lawyers) understands what a person usually does when he is falsely accused of something (in this case taking PEDs): he protests loudly and quickly* that he is innocent; he demands an apology; and threatens to take legal action if an apology and or retraction is not forthcoming. Clemens wanted everyone to believe he was innocent, so he did what he thought an innocent person would do. The problem with this approach, though, is that it makes no sense if you are not innocent.
In some salient ways, he doesn't appear to be telling the truth. The fact that everyone else McNamee named as being his injectees admitted McNamee had injected them hurts Clemens. The fact that his close friend not only admitted to taking injections, but recalled that Clemens told the friend that Clemens had been taking injections hurts Clemens some more. And the fact that Clemens's wife was taking PEDs and Clemens, unbelievably, knew nothing about this, hurts Clemens's credibility.
I would guess in the end, if his lawsuit goes forward, the jury will have to decide who is more and who is less credible, Rocket or McNamee. In terms of his past, McNamee has credibility issues of his own. However, it seems like what he has said about Clemens's use of PEDs has thus far held up.
* I probably made too much of this at the time, but Clemens did not profess his innocence as quickly as most innocent folks do when falsely accused. Bo Jackson, for example, when he was accused by a newspaper of being on steroids, came out that afternoon, with no legal representation and screamed to the world he was innocent and that he would immediately file a lawsuit if the paper did not retract its claims.... Because there are gradations of guilt and innocence and even of truth, my reaction to Clemens's delay in speaking out was misplaced. If he is actually innocent, his saying so over and over and filing the lawsuit all are in line with that.
EDIT: to avoid confusion in this thread, if anyone makes reference to me, call me "Rifkin." My legal opinions are too poor to be called "Rich."
I don't have any US News & World Report rankings handy, but I would guess of the law schools in Northern California, Golden Gate ranks somewhat low. Certainly, it is not as higly regarded as Boalt, Hastings, USF, Stanford, Davis, Santa Clara, or even McGeorge. Does that disqualify the GGU prof's opinion? No. But if he were from Stanford or Cal, I would think their ranking would elevate him.
I'd love to see the reaction Clemens would have after getting the bill from his lawyer who paid a PI tens of thousands of dollars to investigate Clemens because his lawyer wanted to make sure Clemens wasn't lying to him.
Look, all Hardin would do is explain to Clemens the risks.
Well, what did they say?
BTW, none of the lawyers you cited above say they would have investigated Clemens to make sure no Ms. McCreadys or Mrs. Dalys were out there.
Not sure there's any basis for the last two of those three comments.
Hardin is not one of the nations top attorneys in any way that I would use the concept. He's a high-profile attorney from Texas. Those things are not actually the same....lots of guys with high profiles are not actually very good attorneys. Getting attention and being good are not interchangeable. I'm unclear what makes you think he's so talented a lawyer, and you don't explain.
Here and dozens of other sites people suggested the approach Hardin took was ill-considered from day one. It may well be the case that some of those who said so really do have better judgment than Hardin; they obviously have far less knowledge of the case, but the bottom line is that sitting where we are today no one who understands litigation can credibly argue Hardin's path has worked so suggesting that he 'must know' more than anyone else about the strategy is a curious argument, to say the least. The evidence we have suggests that he did a spectacularly poor job understanding the dynamics here, seems to me, which doesn't make a bunch of people on messageboards smarter but does mean that blind faith in him is questionable at best. Maybe, just maybe, there's some experienced litigators posting on boards like this who do know what they are talking about...and that (and not luck) is why people pegged this endgame long ago as a significant probability.
I do think there's close to no chance he failed to describe the repercussions to Clemens at some level, in some way...but suggesting he knows how to handle a case of this profile is something we don't have much reason to believe, either. And whether he really apprised Clemens fully, completely, and with proper aggresiveness how this might go (and the probability that any skeletons in his closet would come out) is open to question, if only because you have to conclude Clemens is delusional to think Hardin really gave him the full 'come to jesus' speech and still moved forward given that he knew what was in that closet.
Personally, I think Clemens is that delusional. But that's a necessary conclusion if you want to argue Hardin comes out ok in all this, I think.
Yes, investigate the OTHER side, not your own client.
You make some pretty broad assumptions about Hardin here Rich. I am sure he is considered, by reputation to be one of the best otherwise a guy like Clemens wouldn't be using him. He has the money to get someone with reptutation and resources. You don't think they investigated Mcnamee? Of course they did. You think this high-priced, presumably very good attorney did not advise Clemens what might happen? You think he failed to leave out what discovery the other side would be entitled to? What you have advocated is a full scale blitzkreig on your own client to determine if he is hiding anything. That is insane and no lawyer or law firm is going to do that. It also may also be considered unethical by the Bar im some states.
Also, don't get off track here we are arguing about whether Hardin was someone negligent for not investigating his own client they way the New York Daily New Reporters did and whether that would have dissuaded Clemens from filing the defamation suit. We agree on one thing. The suit should never have been filed in the first place. It was a publicity stunt.
Okay, here is a list of some of his former clients: Rudy Tomjanovich, Warren Moon, Wade Boggs, Scottie Pippen, Steve Francis and Calvin Murphy. Also, he represented the accounting firm Arthur Andersen during the Enron scandal.
So yes, I think it is fair to say that he knows how to do his due diligence when it comes to high profile cases. What is more likely, that Hardin forgot to warn Roger Clemens that people might pry into his past, or that he warned Roger and was told to file the suit anyway?
It's at least possible the reverse is true. Top-rated law schools have scholars; lower-rated law schools tend to have practitioners. It may be--probably is--still worth paying the bucks for the higher-rated law school if you get in for all kinds of reasons, but at least in Chicago and NYC and Philly, lower-rated law schools tended to have profs with much more courtroom experience especially with individual clients. Many high-rated law schools have profs who clerked, worked a couple of years as an associate at a corporate or appellate firm, wrote scholarly articles, and began teaching. Which is probably the profile those schools should be looking for, but probably not the profile of an expert on a case of this type.
Though the GGU guy may be an idiot, for all I know.
This reminds me of the Michael Skakel murder case in Connecticut. Skakel's family hired a high-profile attorney, Mickey Sherman, who did (by all accounts) an incompetent job in defending Skakel, who was ultimately convicted.
In this 2003 article in The Atlantic, Robert Kennedy, Jr. eloquently defends his cousin and scathingly attacks the talent and judgment of Mickey Sherman. Here's an excerpt: Here's another excerpt from Kennedy's piece which explains where Dominick Dunne comes into this case:
The other thing to note is that it wasn't as if McNamee's lawyer found these (alleged) things out; the media did. Few lawyers get a media tabloid to do their investigating for them and print gossip unrelated to the issue in question.
In other words, you agree with what I said?
It isn't a justification, but the family may not want to be "flown around the country"; we're not talking about a long term assignment in another city, but flying from hotel room to hotel room every couple of days. Also, the season for a pitcher starts in mid-February and goes through September (October for many players, often including Clemens); the summer is only 2½ months out of those 7½ months.
Because it's a ######## premise? Throwing some mistress dust into a jury's eyes might have an effect if the case ever got to one (which it won't), but where's the connection? Jackie Robinson knew Yogi tagged him out but wouldn't admit it, so maybe he's the kind of guy who also committed perjury during his court-martial. Einstein cheated on his wife, so how could FDR have believed his letter?
Yes, obviously if he cheated on his wife, it's not possible for him not to have used PEDs.
What color is the sky in your world?
?????????????
And brother, is Yogi hoppin'!
Well, the problem is not only that he cheated on his wife, with multiple women, on multiple occasions, including one who he "recruited" at the age of 15. It's also that he did this after holding a press conference to indicate what a good, upstanding family man he was. And that the other people who McNamee injected or supplied with PEDs have largely (but not unconditionally) agreed to the truth of McNamee's statements regarding PEDs. And that Clemens has acknowledged the truth in McNamee injecting his wife with HGH.
I'm not saying that Clemens is or was a PED user because he cheated on his wife. I would say, however, given Clemens appears to have lied about many other things (including but not limited to his fidelity to his wife) and McNamee appears to have been (relatively) truthful about PED use, Clemens may also be lying about his suspected PED use. As you note, a lie about one thing does not automatically mean everything else is a lie. A pattern of lying, however, can be reasonable cause for the inference of lying on other related issues.
Ray, would you like me to go through your posting history and show the numerous times where you have said that McNamee cannot be trusted because of his pattern of lying? If McNamee's history of lying means he can't be trusted, surely you would apply the same logic to Clemens.
What color is the sky in your world?
In mine it's blue, but you seem to be living in one where it's a different color, clearly. If you can point out where I said that Clemens cheating on his wife means he did steroids that's fine.
However, when you fail at that I hope you acknowledge you dishonestly mischaracterized what I said. Again, in my world that's not a good approach---in yours, well, who knows what passes for reasonable commentary. And perhaps that explains your other comments as well.
I agree with you that McNamee may have reliability and honesty issues of his own. However, just as you note that Clemens lying about one thing does not automatically make him a liar about another thing, McNamee lying about one thing also does not make him automatically a liar about another thing. Regrettably, in this situation, we have encountered a situation where both individuals have been shown to be unreliable. The whole situation is made more complicated by the fact that both individuals have an incentive to lie - McNamee with respect to his agreement with the investigating agencies, and Clemens with respect to both his repuation, and possibly his own legal wellbeing.
In McNamee's favor, however, he does have coroboration on several of his statements from outside sources (Pettite - with respect to Pettite's use - and Clemens - with respect to Clemens' wife's use). That being said, as you note, that McNamee may be telling the truth about one issue does not mean that he's telling the truth about another issues. However, it also doesn't mean he's lying.
But if we "apply the same logic" to both of them, then we're left with no information at all, which means that Clemens must be deemed innocent.
This is simply wrong. No information means 'no information' and not your favored conclusion.
You are, I suspect, applying a criminal prosecution burden of proof here. But we have no reason to do so, we're talking about a factual question not a legal one right now (though, Clemens may end up facing legal ones as well). As to the factual question of whether he used PEDs, it is simply not the case that no information means he should be 'deemed innocent' It means we don't know.
Did he even lie about his fidelity to his wife?
This is simply wrong. No information means 'no information' and not your favored conclusion.
If you have no information about someone's guilt, you don't presume them to be innocent?
Please note that my position in this whole mess is that I honestly couldn't care less as to whether Clemens did or did not use PEDs. Rather, I'm just confused as to how people seem to be sure that McNamee is lying about everything when Clemens has just as much incentive to lie. Keep in mind that I've already indicated that I agree that McNamee has a history of untruthfullness (or whatever other term you would prefer to indicate that he's lied before, and on multiple occasions). Clemens, however, also appears to have lied about a not inconsiderable number of issues.
He held a press conference to state that he was a good, honest, upstanding family man. I realise that this is limited to my understanding of the terms, but I've always assumed that "good, honest, upstanding family man" (or whatever precise variation he moved) implicitly includes "not trying to nail every piece of trim which walks by".
I acknowlege that this may be a misinterpretation on my part.
At least you ackowledge it.
Well, the problem is that we don't have "no information". We do have some information. We just have no information which we can yet corroborate against a suitable standard of law to ensure a Guilty verdict. While this means that we would likely find someone in such a case to be "Not guilty" in a court of law, we are not discussing this to a legal standard. Rather, we're just discussing this as what may have happened, and attempting to determine what information we really do have and, indirectly, who may be the more reliable figure in this case.
Also, there's a reason that they say that they "find" someone "Not Guilty", rather than they are "Not Guilty". It's because a finding is not always the same as a fact.
I realize that, but the post I responded to assumed there was no information.
Clemens agreed that McNamee injected his wife with HGH at a certain place and time. That counts as corroboration of several of his statements. That Clemens disagrees with other aspects of McNamee's statements regarding his injection of Mrs. Clemens with HGH does not invalidate the entirety of McNamee's statement. Rather, it just leaves us in the same position which we've been in for a long time of having to decide between the reliability and honesty of two people who both may have an incentive to lie, and who both have demonstrated at least some problems with their historical reliability.
Fair enough. So, given that we do have information in this case, how would you suggest proceeding to determine the relative reliability of the people involved?
Incidentally, as a side note, I would just like to state how much I hate my phrasing of the problem is that we don't have "no information". I can't think of a good way to make it more confusing.
You are making the same mistake of reading into this a criminal burden of proof. We have a factual question---did Clemens use PEDs. We don't have a criminal one here (that is being discussed, anyway). "Innocent" is not really the appropriate term to be thinking of.
So, no, in the absence of any information I don't impute a burden of proof out of nowhere as you have suggested. I take it that no information means we simply don't know the answer to the question.
Misunderstanding the baseline is, I think, why a lot of people have confused themselves about this whole situation.
As an aside, once we get the starting point right I agree with Ryan that there is, actually, information here and what it suggests is most likely. But first, we have to all recognize that the starting point for the discussion is zero, not some burden of proof people want to impose in order to make their preferred conclusion more easily reached.
Nice clip! Looks like Yogi tagged him late. So I guess he couldn't have committed perjury.
You got a clip of that?
McNamee's legal team has to do the best they can with what they have to work with. As does Clemens'. They're both integrity challenged.
As for Rusty Hardin's credentials, there's this.
As for Rusty Hardin not realizing what a #### storm this case would turn into, there's this.
I don't know the details of any of Hardin's other work at a level where I can really comment on it thoughtfully; a one or two sentence writeup is useless for assessing a lawyer in a complex case. In this case, which I have followed closely, I can say that Hardin's strategy is questionable at best and his tactics have been a very mixed bag, with some good and some pretty bad. Put together, and considering where his client started and ended up on this matter, I don't consider this representation to be at all a success for Hardin in any way.
Of course, it may well be the case that Clemens the client is the real problem here, but that is something we simply don't know either way right now. I'm not saying Hardin is incompetent, but I am saying that citing to some mass-market newspaper blurb as evidence that he's a great attorney is not a very useful way to assess his skills.
I'll stand by the ????s
You got a clip of that?
YouTube used to have video of Albert Einstein committing adultery. But the sex was occurring while the song "Superfunkycalifragisexy" was playing in the background, and Prince's lawyers made YouTube yank all the clips down.
The only thing special about criminal prosecutions is the standard of proof -- that is, beyond a reasonable doubt. But I am not applying a beyond-a-reasonable-doubt standard here; if anything, I'm applying the civil standard of preponderance of the evidence.Which, to any decent person, means innocent.
First, let's just get it out of the way up front: McNamee does not appear to have been relatively truthful about PED use. I don't see how anyone paying attention could arrive at that conclusion.
But what "many other things" does Clemens appear to have lied about? When did he tell us he had been faithful to his wife?
To quote myself above:
Similarly, although McNamee undoubtedly should not be considered a reliable source, he has been corroborated on certain aspects of his testimony - that Pettite used HGH, and that he injected Clemens' wife. That McNamee has lied (or may have lied) about certain things does not mean that he has lied about everything. The problem that we have is in determining whether he has lied about Clemens' drug use. You seem to have determined that he has lied about Clemens. I am choosing the position of "I have no idea if he lied about Clemens, or if he told the truth".
Either way, I wouldn't want to build a criminal case around McNamee's testimony, but this isn't what we're (or at least I'm) doing here. We're (or at least I am) arguing about the separate appearance of truthfulness of both Clemens and McNamee.
When was this?
I require no evidence to acknowledge the "possibility" of anything, but I understand that's not what you mean. I will be persuaded by evidence that shows that it's likely true that Clemens used PEDs. McNamee's statements would be strong evidence, but for the fact that they're uncorroborated and he's lied over and over again about the matter. So I'll need something more: a credible and reliable statement of personal knowledge from a disinterested party; a positive drug test; a paper trail; etc. (Not all of such things but at least one or more of them, depending on what it is.)
I "defend" Clemens to the extent that people claim that his alleged PED use has been shown to be likely (or more). I haven't said he's innocent, only that he deserves to be given the benefit of the doubt as long as it's not been shown that he used PEDs.
And, by the way, as to the red herring people keep bringing up about a "legal standard such as in a criminal trial" I'm not talking about a "legal standard" at all; I'm just talking about using logic to try to determine what may or may not be likely.
We're sure that McNamee has lied about many things, because he confessed to the lies or told multiple conflicting stories, only one of which could possibly be true. So it's more than just "incentive to lie" -- but actual lying -- in McNamee's case.
Please list Clemens's lies. For all the talk about him not being faithful to his wife, he never told us that he had been faithful and, in fact, admitted such -- he admitted to "mistakes in his personal life" -- in his first public comments on last week's developments.
In fairness, I can identify one issue he may have lied about regarding last week's news stories: Hardin told us that there was no sexual relationship with McCready, and there does appear to have been one. I presume Hardin spoke to Clemens before saying that, and that Hardin did not misspeak. So I'm identifying this as a possible lie by Clemens on this matter, but I'm also not sure we have the complete answer here yet for the reasons I just gave.
Obviously, but the better way to say this is that someone is found "not guilty"; they're not found "innocent."
I don't suggest proceeding. I'm able to live with not knowing The Truth; I'm not one of the people on a crusade to prove that he used steroids.
We have certain information. We can evaluate it and reach a conclusion. But if that conclusion is "he deserves the benefit of the doubt because it hasn't been shown that he used PEDs," I'm ok with that. I don't "need" to proceed.
And that is actually part of the problem in evaluating Clemens' truthfulness - he only admitted to his infidelity in a general sense, and in an extremely limited scope and very vague terms while refusing to address any specific incidents (as is his right) after extensive information had been provided from sources he couldn't ignore or sue. I don't understand how this should be considered a point in his favor when evaluating his honesty.
Also, I agree with you that we don't have the complete answer here yet. Unfortunately, we are in a situation where we are unlikely to ever have the complete answer with respect to any of this. As a result, we are doing what people do when they don't have the complete answer - we are discussing it in the hope of arriving at the best possible answer based on the available information.
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