Clemens Faces Game Of Legal Dodge Ball

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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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.

[sanfelz]

The reason a House committee will have interest in this is because baseball enjoys antitrust advantages even while taking many millions of taxpayer money for stadiums, roads and free police protection.

Maybe Clemens can explain why he supposedly is injected systemically with Lidocaine when it is intended for local use.

[hungry1968]

Our Congress doesn''t have anything better to worry about than overpaid junkies using garbage to improve their performance?

Health care? Economy? War? Terrorism? Crime?.....

[excoachken]

Roger, you might have to share a cell with Mike Vick. I heard that he treats his roomies like dogs.

[irliberal]

The reason anyone at all cares about his is because....? It''s not even as interesting as Britney, and shes boring as all heck. I clicked on it because I never heard the name "roger clemens" before. Now I find out he''s some sort of baseball pitcher who may or may not have used drugs. I can think of approximately 923,349 things more important think about than this. Next!

[baileyccc]

Clemens should leave the game in disgrace. I believe Congress has more important things to worry about than a sport that can never be clean up.

[bobnjersey]

[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. ]

is the presumption of innocence in the room at all?

[omded]

Since when did Congress become responsible for sorting out whether or not major league baseball players have used steroids? This may be a big issue for baseball fans, but, let''s let the baseball fans figure this whole thing out. Congress has plenty of other issues to address. It appears obvious to me that Congress wants to divert our attention away from the things they really need to be dealing with.
Let''s identify the Congressmen/Congresswomen who are drawing Congress into this mess and make sure we vote them out of office at the next election, or even see if they can''t be recalled right now. Clearly, they''re don''t know what their job is, or they just don''t want to do it. Let''s put some people in charge who will do their job: run the country!

[hungry1968]

Our congress has nothing better to worry about than this garbage?!?!

Has anyone told them about the ACTUAL problems this country is having right now?

[excoachken]

Roger, Roger, pants on Fire!

[c6vette3]

The house of deception he built starts the inevitable downfall today.