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Is there a laywer in the house?

Benjamin Grimm Jan 08 2008 09:14 AM

Here's a question for the lawyers in the house: What's the difference between "defamation of character" and libel or slander? And, in a lawsuit like the one Clemens is pursuing, on whom is the burden of proof? Does Clemens have to prove that MacNamee lied, or does MacNamee have to prove that he told the truth?

metirish Jan 08 2008 09:30 AM Edited 1 time(s), most recently on Jan 08 2008 10:10 AM

I'm not a lawyer and I don't play one on TV but an expert on TV last night said the burden of proof is now on Clemens and that the " discovery process" will be very interesting .

DocTee Jan 08 2008 09:55 AM

I believe slander is spoken and libel is written/published but both are (or can be) defamatory.

metsguyinmichigan Jan 08 2008 10:01 AM Edited 1 time(s), most recently on Jan 09 2008 08:25 AM

DocTee wrote: I believe slander is spoken and libel is written/published but both are (or can be) defamatory. Correct! Also have to show a reckless disregard for the truth in a libel case.

DocTee Jan 08 2008 10:11 AM

]Also have to show a reckelss disregard for the truth in a libel case. Which is what makes it so VERY hard to prove...the accused can always state that they honestky believed the allegations they were making (or reporting).

themetfairy Jan 08 2008 12:23 PM

Also, as the one bringing the lawsuit, the burden of proof rests on Clemens' steroid-enhanced shoulders.

bmfc1 Jan 08 2008 02:20 PM

I also be a lawyer and Mets Fan In Michigan is correct. I uphold his opinion!

RealityChuck Jan 08 2008 02:31 PM

As a public figure, Clemens is not likely to win any libel lawsuit, since he does have to prove that not only was the assertion false, but that the person who published it knew definitively that it was false, yet published it anyway. Clemens has to prove: 1. McNamee lied. 2. McNamee knew that he was lying. 3. Clemens reputation suffered because of the lie. #3 is easy enough to prove; #1 is quite a bit harder, and #2 is a bitch. "Defamation of Character" is just another way to describe libel or slander.

Frayed Knot Jan 09 2008 07:43 AM

Derek Jacques of Baseball Prospectus (a former lawyer - or so I gather from his piece) [url=http://www.baseballprospectus.com/article.php?articleid=7032]talks about the legal nuances[/url] in any potential Clemens case. A claim of defamation (usually broken down into slander for spoken statements and libel for statements made in writing) accuses someone of saying or writing something untruthful that is then "published" to a third party, for the purpose of injuring the reputation of the person making the claim. Because a statement can't be defamatory if it's true, the truth of the allegations McNamee made against Clemens is the main issue of the suit. ... The Clemens complaint calls McNamee's statements in the Mitchell Report "defamation per se," which isn't just the egregious use of Latin to make things sound fancy. Defamation per se is a legal term which refers to certain kinds of defamatory statements that are so bad that the person bringing the lawsuit can skip the step of proving that their reputation was harmed by the statement—such as an accusation of criminal conduct, or of giving someone a venereal disease. Claiming that an athlete used illegal performance-enhancing drugs certainly seems to fit. Defamation is a notoriously hard case to prove. In this situation, the allegations are all about the actions of two men alone in a room together with no other witnesses, and likely no physical or documentary evidence to connect or divorce them from what McNamee says they were doing. Clemens will face an uphill climb making his case, both because he bears the burden of proof and because he has to prove a negative—that an event that McNamee doesn't tie to a specific date and time didn't happen.

Benjamin Grimm Jan 09 2008 07:53 AM

I'm looking forward to what Andy Pettitte has to say, if anything. Those two seemed to have such a mutual crush going on. I wouldn't be surprised if, during their intimate conversations, they talked about their butt injections. I'd love to see Pettitte, under oath, come clean. (People who know him seem to think that he might do that.) And if he does, and he says, "Yes, Roger and I did get heinie shots from McNamee, and we discussed it frequently" then Clemens is really up the creek. In my ideal scenario, McGwire, Bonds, and Clemens are all kept out of Cooperstown.

John Cougar Lunchbucket Jan 09 2008 08:12 AM

Let's not get caught up in this fantasy that Andy Pettitte is such a great guy. He was apparently in on Clemens' deal to have goons visit with McNamee pressuring him to recant the day before the Mitchell Report was released, the Daily Snooze sez. And for all his talk of "coming clean" he admitted only to what was in the report and nothing more.

sharpie Jan 09 2008 08:15 AM

Also, Pettitte may not testify. I didn't think one had a choice in such matters. http://sports.espn.go.com/mlb/news/story?id=3186496

metsguyinmichigan Jan 09 2008 08:27 AM

bmfc1 wrote: I also be a lawyer and Mets Fan In Michigan is correct. I uphold his opinion! Thank you! We deal with this a lot. Sometimes somebody on the receiving end of a rough story will rant and rave and threaten a libel suit. Usually we just state our mantra: Truth is the best defense. If it's true, it's not libelous.

Benjamin Grimm Jan 09 2008 08:45 AM

I have no opinion on whether or not Pettitte is a great guy. He may or may not be. But my hope is that he's smarter than Clemens and knows that he's best served by telling the truth. Yes, he said "twice" to reporters, but he might admit to more when under oath. And he might not be loyal to his "friend" who expressed surprise and disappointment at Pettitte's steroid use. Keith Hernandez, remember, never admitted to cocaine use until he had to testify in Pittsburgh. He knew better than to perjure himself. Maybe Pettitte will follow the same course of action. I'm not counting on him being a swell guy, just hoping he's smarter than Clemens, which isn't setting that high a bar.

AG/DC Jan 09 2008 08:55 AM

But was Keef asked to break rank and implicate his friends?

Benjamin Grimm Jan 09 2008 09:03 AM

I don't recall. I think he only implicated himself, but I'm not sure. But would Pettitte risk jail time to keep Clemens' steroid use a secret, when the public at large is already convinced that it's true? I sure wouldn't.

Centerfield Jan 09 2008 11:00 AM

Even after all he's done for baseball? Some fan you are.