Originally written on Fangraphs  |  Last updated 2/6/13
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Yahoo! Sports reporters Jeff Passan and Tim Brown reported late on Tuesday that they had obtained records of now defunct anti-aging clinic Biogenesis and that three of the documents contained the name of Brewers left fielder Ryan Braun. Last week, the New Times of Miami reported that Biogenesis and its founder Anthony Bosch had allegedly provided performance-enhancing drugs to other MLB players, including Alex Rodriguez, Nelson Cruz, and Gio Gonzalez. Rodriguez, Cruz, and Gonzalez have denied receiving PEDs from Biogenesis or Bosch. According to Yahoo!, one of the documents includes Braun’s name among a list of other players, including Rodriguez, Gonzalez, Melky Cabrera, Francisco Cervelli, and Danny Valencia, but without any notation about drugs or other substances banned by MLB. Another document has multiple references to Chris Lyons, one of several attorneys who represented Braun in 2011 and 2012 in his appeal of a positive drug test. That appeal was ultimately successful when the MLB arbitrator, Shyam Das, found that the urine sample obtained from Braun had not been handled in accordance with the process set forth in MLB’s Joint Drug Prevention and Treatment Program and was, therefore, invalid. After Yahoo!’s report was published, Braun issued the following statement: During the course of preparing for my successful appeal last year, my attorneys, who were previously familiar with Tony Bosch, used him as a consultant. More specifically, he answered questions about T/E ratio and possibilities of tampering with samples. There was a dispute over compensation for Bosch’s work, which is why my lawyer and I are listed under ‘moneys owed’ and not on any other list. I have nothing to hide and have never had any other relationship with Bosch. I will fully cooperate with any inquiry into this matter. Immediately, the Twitterverse burst into action, questioning why Braun’s attorneys would consult with Tony Bosch as part of Braun’s appeal. Bosch falsely held himself out as a doctor but had no medical degree! Bosch supplied Manny Ramirez with the PEDs that led his suspension in 2009! There must be hundreds of experts Braun and lawyers could have used! Why didn’t Braun get ahead of this story by coming forward last week about his connection to Bosch? Why wait and be reactive! It looks suspicious! I don’t have any information about Braun’s connection to Bosch or Biogenesis other than what’s been reported. But I practiced law for 20 years and spent a great deal of time working with experts in high-stakes cases. Based on that experience, Braun’s explanation is plausible to me. Does the statement raise questions that need to be answered? Yes. Does it necessarily exonerate Braun? No. But his explanation is not absurd on its face, as many contend. Let me explain why. When preparing a case for trial or, in the instance, an arbitration, a lawyer typically retains one or more experts. This is particularly true when a case involves factual disputes on topics beyond the knowledge of a layperson or judge. Some experts are used to educate lawyers and assist behind the scenes in preparing the case. Other experts are retained as “testifying experts” who will provide their expert opinions on the disputed factual issues via sworn testimony. The law treats behind-the-scenes experts quite differently from testifying experts. The work of behind-the-scenes experts, or consultants, is considered confidential and within the ambit of the attorney-client privilege and attorney work-product privilege. Lawyers rely on consulting experts to test theories and potential approaches to the case  without fear that the consultant’s identity, advice, opinions, and conclusions will be disclosed to the parties and lawyers on the other side of the case. Testifying experts are not cloaked in the same level of privilege and confidentiality. In order to qualify as a testifying expert, the witness must establish her expertise in the subject matter in dispute. After that, she must explain the facts and documents she relied on to form her opinions, any experiments she conducted, her conversations with the retaining attorney, and any other basis for her opinions.  Lawyers for the opposing parties are entitled to cross-examine the expert. Braun’s appeal focused on the validity of the urine test that allegedly showed a high level of testosterone. His attorneys reportedly attacked the test in two ways. First, by showing that MLB’s drug testing protocol was not followed; and second, by showing that an improperly-handled urine sample could lead to a much higher-than-normal testosterone reading. Braun’s statement says that his attorneys used Tony Bosch “as a consultant” and that he answered questions “about T/E ratio and possibilities of tampering with samples.” Sounds to me like Bosch worked as a behind-the-scenes expert and advised Braun’s attorneys as they prepared to challenge the positive test. Why Bosch? Why use someone who’d already been linked to banned substances? I don’t know for sure, but it makes sense to me to his lawyers would consult with someone who had experience with a player (Manny Ramirez) who had tested positive and had been given a 50-game suspension. If you’re a lawyer defending a client accused of participating in a drug cartel conspiracy, you want to consult with people who knows how drug cartels work. Sure, there are law enforcement experts that you’ll want to testify for the client, but you also would like to consult with former drug cartel members. It’s entirely possible that Bosch had information from Ramirez’s situation that was useful to Braun’s lawyers in preparing their appeal. And what of $20,000 to $30,000 that Braun’s attorneys allegedly still owed Bosch? Isn’t that a lot of money to pay a consultant to answer some questions about T/E ratios and tampering with samples? No, it’s not. My guess is that Braun’s appeal cost upwards of a million dollars. Twenty or thirty thousand dollars for a consultant is a drop in the bucket. Why didn’t Braun get out in front of the story? Why not disclose his connection to Bosch and Biogenesis after the New Times report last week? Two reasons. For one, Braun may not have known that the Biogenesis documents contained any reference to him. The New Times report didn’t identify Braun in any way. Why get out in front of a story without knowing the facts? Second, if Bosch was a behind-the-scenes consultant, then his identity and work on Braun’s appeal was privileged and confidential. If Braun had issued a broad statement disclosing everything he knows about Bosch, it could result — down the line — in a waiver of confidentiality. Braun’s statement today was narrowly crafted to address only the documents in Yahoo!’s report. If I were Braun’s attorney, I would have advised precisely the same approach. What does all of this mean? Where does it leave us? With many more questions than answers. But those questions should be asked — and the answers listened to — with an open mind. Those who have already decided that Braun’s statement makes no sense and that’s he lying or covering up wrongdoing will only hear what they want to hear going forward. But that won’t necessarily get to the truth. And the truth is what we should all be seeking.
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