ENTERTAINMENT LITIGATION: THE ROGER CLEMENS PERJURY TRIAL

A CONTINUING REMINDER OF THE NEED FOR STRONG ADVISORSRoger Clemens

Roger Clemens must feel like he’s under siege these days. Once certain that he’d be elected to the baseball hall of fame, Clemens is now on trial for the second time on perjury charges for lying about his supposed use of performance enhancing drugs (PEDs). (Clemens’ first trial ended in a mistrial when prosecutors showed a video that had previously been ruled inadmissible.)

I previously wrote about Clemens and his predicament well before his indictment and first criminal trial. My first post was about how much a celebrity’s reputation is worth and whether suing for defamation is an appropriate strategy to defend that reputation. I updated that first post about the crucial decisions on how to defend celebrities and their reputations when the judge dismissed most of Clemens’ claims in his civil lawsuit for defamation against his former trainer.

Since then, Clemens was indicted and now is undergoing his second trial on federal perjury charges for allegedly lying to Congress in his testimony about the use of PEDs in baseball. After the jump, I’ll discuss how a celebrity’s reputation, and perhaps his freedom, depends on the quality and strength of the advice he receives from his representatives and friends.

SELF-INFLICTED WOUNDS THAT COULD HAVE BEEN PREVENTED

Clemens’ problems began when Clemens voluntarily testified before Congress. The Mitchell Commission issued a report which detailed findings about baseball players who supposedly used performance enhancing drugs (PEDs). Clemens was prominent in the report. That prompted Clemens to seek to clear his name by voluntarily testifying before Congress during hearings examining the extent to which baseball players used PEDs. During his testimony, Clemens vehemently denied using PEDs.

Public statements by Congressmen and others after Clemens’ indictment indicate that they tried to convince Clemens not to testify. The House Oversight and Government Affairs Committee which was conducting the hearings supposedly didn’t need Clemens’ testimony and that Clemens’s testimony was unnecessary. Representative Henry Waxman, the then-chairman of the Committee, reportedly urged Clemens to tell the truth if he chose to do to testify. Of course, Clemens is now in trial as a result of his purported lies in his testimony before the Committee.

The burden of keeping strong-willed, high profile clients like Clemens from shooting themselves in the foot falls on their representatives — lawyers, agents, managers — and close friends. Of course, there are two major issues for those of us who provide such advice. First, the client/friend doesn’t always listen. Perhaps more importantly, when the client/friend is at least initially reluctant to follow the advice, the question becomes how hard to “press” the issue — lest the client or friend becomes a former client/friend. I have faced such decisions numerous times during the course of providing advice both before or after litigation.

Beyond Clemens and his issues, the news is littered with celebrities who either ignore advice from their friends and representatives or who are getting poor advice. Many encompass both legal and public relations issues. For example, Lindsay Lohan seems hell bent on self destruction or at least a longer stint in prison — all of it played out in public. We can only speculate as to whether these celebrities are ignoring/refusing good advice or simply receiving poor advice.

Thus, it is critical for those closest to such public figures to speak “truth to power” — to make sure that these personalities understand the consequences of their conduct and that they directly receive proper advice, no matter how blunt. If current friends and advisers cannot do it, or are too close to the situation, then it’s vital that “outside” experts are brought in who can. Fear of losing the client/friend cannot get in the way of ensuring that the message and advice gets through so that the celebrity makes an informed decision.

TAKEAWAYS

Clemens (and Barry Bonds) are caught up in an unusual situation — the baseball steroid controversy. The government’s pursuit of these two high profile baseball players — players who were the best of the best and stone cold locks for the baseball hall of fame prior to their link to the steroid scandal — is unusual to say the least. Indeed, the “intensity” with which prosecutors and agents went after evidence was severely criticized by three federal district courts as well as the Ninth Circuit. (You can read about how federal agents illegally seized drug testing records in this opinion by the Ninth Circuit here.) So it’s easy to see how Clemens (and/or his people) could underestimate the potential blow back from his decision to voluntarily testify (supposedly falsely) to the House Oversight and Government Affairs Committee.

However, the published reports about the risks of Clemens’ decision to testify voluntarily, and the supposedly untruthful content of that testimony, suggest that no one close enough to Clemens had the difficult conversation with him that might have convinced him to choose another course. Clemens’ second criminal trial is now in its sixth week. Reports on Clemens’ supposedly being injected with steroids by his former trainer, Brian McNamee, fill the media every day. This in addition to the negative media resulting from Clemens’ failed civil defamation case against McNamee — the last of which came last year when the Supreme Court refused Clemens’ request to revive the case. Clemens could have been spared all of it had he chosen a different path.

All of us have lost clients who did not like the advice we have given. In my case, I have had the fortune of having some of those clients later telling me that they wished they had followed my advice. The point is that a good representative — a good agent, manager, lawyer, friend, etc. — must be willing to risk losing the client to protect him or her from making bad decisions. That is our role. To fulfill that role must be the highest priority.

That’s my $.02 anyway.