Clemens Faces Game Of Legal Dodge Ball
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
When Roger Clemens goes to Capitol Hill to be deposed Tuesday he will be experiencing a legal ritual that takes place thousands of times each day in this country. One on side of the conference table will be Clemens and his lawyers. On the other side will be attorneys and investigators. And the truth is a zero-sum game.
The deposition in American legal life - in civil cases in particular - is ubiquitous. One party wants information from the other and these semi-formal question-and-answer sessions, under oath but not in a courtroom, often can determine the outcome of a case. Over and over again, all across the country, it is during these depositions that a case's "Perry Mason" moment occurs. A significant percentage of civil cases settle after depositions have been taken and disputed material facts fleshed out.
Sometimes, the deponent is a third-party, an independent witness who has no ax to grind. These depositions often are a little less tense and heated. But sometimes the deponent is the defendant or the plaintiff or, in Clemens' case, the object of a serious allegation that profoundly impacts his reputation. With the stakes thus higher, the likelihood of conflict during the deposition should rise by an order of magnitude. And I suspect that behind closed doors Tuesday there will be plenty of storm and fire between and among Clemens and the barristers.
Federal lawyers will ask Clemens a pointed question about alleged steroid and human growth hormone use, for example, and his lawyer, Rusty Hardin, will object to its form, or to its relevance. And then the lawyers will fight among themselves - all of it transcribed by a court reporter - until moving on to the next question. This kabuki dance will be repeated many times before the parties break for the day.
You can be sure that Clemens' inquisitors will have figured out a dozen different ways, word for word, to ask Clemens about the allegations against him. All of these questions will be designed either to get Clemens caught in a perjury trap or to commit to a particular story about his relationship with his former personal trainer, Brian McNamee (in which case he'll be forever stuck with that story no matter what subsequent evidence shows).
And you can be just as sure that Hardin will have prepared his client to answer those questions in a way that best protects him from a future perjury charge. All of Clemens' answers will be designed to subsequently give him wiggle room should prosecutors (or legislators) try to catch him for lying under oath (or simply lying to Congress).
The wild card here? Clemens' famous temper, one Hardin has not always been able to control.
Whichever side wins this battle of language, of nuance, of legal construction, of physical endurance and mental agility (you try arguing with brilliant lawyers all day - it isn't easy) will likely win this round in what is shaping up to be a protracted war over Clemens' reputation, his legacy and, perhaps, his liberty.