Clemens v. McNamee - The Games Begin

ESPN.com is reporting that the battle between Clemens and McNamee has already begun -- even though McNamee hasn't been served.

That's actually the problem. Clemens' attorney, Rusty "Trombone" Hardin, is alleging that McNamee is ducking service. McNamee's attorney, Earl Ward, is questioning whether Clemens has any intention of serving the papers. Ward points out that the suit was filed on a Sunday night before a Monday press conference.

blahblablahblah Brian McNamee (right) is a pro at not being home

Unless you're a law nerd, feel free to skip the small-text paragraph

The issue is complicated further because the suit was filed in Harris County, Texas. McNamee is a resident of New York. Texas must have "personal jurisdiction" over McNamee. That's likely a non-issue, though Ward will certainly enter a "special appearance" to contest the issue without admitting it. Their rules of civil procedure apply, as it is Texas that must be satisfied that the defendant has been apprised of the case against him. Rule 21(a) of those rules provides for service in personam as well as by certified mail (Hardin claims to have done both). See also Rule 106. Rule 108 provides that out-of-state domestic defendants are afforded the same protections. Other rules provide for "substituted service" if the defendant should duck process successfully. Texas does not appear to provide a specific time period in which the suit must be filed.

So why would McNamee be ducking process? Why wouldn't he?

Texas provides no penalty for intentionally ducking a summons. In fact, she provides many alternative mechanisms for service. On that front, McNamee does not endanger himself by refusing to answer the door (other than looking like a wuss).

Also, McNamee is in an interesting situation for a defendant. Time is completely on his side. As time marches on, nothing Roger Clemens can produce can PROVE he DID NOT use any performance-enhancing substances. On the other hand, any evidence that comes out that indicates that Roger DID use performance-enhancing drugs, including his non-immune Congressional testimony in February, can only HELP McNamee. Why get the process moving? Time is on your side.

Plus, there is a financial concept known as the present value of money. McNamee's money, what little of it might exist, is more valuable to him now in his hands than in the hands of others. Presumably, he can invest it as he sees fit. That's why you see the commercials offering lump sums for structured settlements. They'll generally offer you a fraction of the total owed in exchange for getting the rights to it today. They know that money in your hands now is worth more to you than money you might see later, even if they're offering you far less than you'd receive over time.

Clemens' attorney Hardin is going to try to paint McNamee as a deadbeat. Ward is going to keep trying to paint the suit as a publicity ploy. Both are doing the right thing, but every day that passes with this suit not being served is benefitting McNamee to be sure.