Thursday, March 06, 2008

Liar's Poker Revisited

Lest we forget our literary inspirator's first book, the debacle with Roger Clemens and Brian McNamee illustrates key differences between practicing law and attending law school. As the next wave of law graduates approach entry into the market, this case helps to show why practicing law can sometimes be deflating to graduates after the law school experience.

There is No Scholarly Discourse or Fundamental Truth
In law school, we would have a Socratic discussion about defamation law and legal aspects of professional athletes using performance-enhancing drugs. At the end of the discussion we would feel we had reached some fundamental truth of humanity. I believe this is an effective way to learn how to analyze law, and it provides intellectual rewards for the students. However, I also believe students expect to find these same rewards in their practice.

In the actual case, there is no such debate and there is no fundamental truth. One side will eventually prove his story is more credible than the other side's story. The case will be won in the trenches by digging up evidence rather than a creative new application of law. Enough dirt has come out about both men to make them blush; more is sure to follow. The "truth" will be determined by what a 12-member jury believes. The loser will undoubtedly remain committed to his story even if he does so from a jail cell.

One of the Parties is Defiantly Lying
Clemens and McNamee both swore under oath before Congress, and at least one of them defiantly lied. It is hard to tell because they both performed so poorly, but the FBI is now investigating Clemens. We would like to think that people respect the majesty of courts and take sworn oaths seriously, but this sort of lying happens all the time in litigation (Bill Clinton, anyone?). Sometimes you can prove the other side is lying, sometimes you cannot, and sometimes it is your client that does the lying.

What is the Other Side Thinking?
A lot of times the other side will leave you scratching your head. Clemens produced "evidence" in the form of a commissioned study about his career statistics and a taped conversation with McNamee that both seem to confirm he took steroids. His argument before Congress is that the Mitchell Report is accurate about every other named player but contains lies about him. Clemens threw his family and friends under the bus to make his argument.

McNamee, a former cop, produced "evidence" of 8-year old syringes and gauze pads that allegedly have Clemens' DNA. So he had the foresight to keep it but not the foresight to authenticate it? His argument is that he has a history of habitual lying but he is telling the truth about Clemens.

* * *

While you occasionally get to take a novel issue of law to your state supreme court or circuit court of appeals, most cases pan out like this one. After mastering the law, you have to sort through suspect witnesses and suspect evidence to find the best way to generate a favorable outcome for your client. You do not get the opportunity for scholarly discourse or to reveal a fundamental truth, and the case will most often end with little fanfare in a confidential settlement. It can make practicing law deflating for new graduates.

Practicing law is a wonderful profession, and there is nothing else I would rather do. It is rewarding to know that you provided your client with outstanding legal representation in a time when they most needed help. The rewards are simply more different from the law school experience than many new graduates realize.


Anonymous Anonymous said...

"and the case will most often end with little fanfare in a confidential settlement"

For the sake of clarity, criminal prosecutions cannot result in confidential settlements.

3/07/2008 9:22 AM  
Blogger Maurizio said...

Without any scientific proof, I have always contended that law schools were remiss in their approach to what lawyers do. My students, before taking clinic courses, think that "facts" are something that comes after "statement of." I do not have any insight into the best methodology, but I do think that we should devote some of our resources as educators of future lawyers to teaching fact development and fact advocacy. Then perhaps the diappointment would be less and the rewards greater.

3/07/2008 12:41 PM  

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