Stepping into what he called an “odious squabble,” a Florida judge will hear testimony as to whether a defense lawyer in an insurance coverage case coached a witness during a deposition by tapping her on the foot.

Lawyer Kenneth Engerrand's "footsie" with a witness

Plaintiffs' counsel have accused Houston attorney Kenneth G. Engerrand of witness-tampering even though he has insisted that he simply mistook the witness's foot for a pillar. During a July 12 deposition, a paralegal took an under-the-table photo that shows Engerrand's loafer-clad foot touching the sandal being worn by Connie Dennis, an employee of Insurance Company of America (INA).

“Thankfully, isn't a picture worth a thousand words?” plaintiffs' attorney Joseph P. Klock of Coral Gables, Fla., asked in motions to sanction INA and disqualify Engerrand and his law firm, Brown Sims, from the case. “There is no question that Mr. Engerrand's foot was tapping the witnesses [sic].”

Klock cited a court rule that bars “Objections or statements which have the effect of coaching the witness, instructing the witness concerning the way in which he or she should frame a response, or suggesting an answer to the witness.”

Somewhat reluctantly, Chief U.S. Magistrate Judge Stephen T. Brown decided last week to hold an evidentiary hearing Oct. 7 on what he called the “footsie motions,” noting that there are “no sworn statements of either side in this odious squabble.” He asked — but did not order — both Engerrand and Dennis to testify.

“There are two reasons for this:” he explained in his order,

(1) The Court questions whether it has the authority to order Ms. Dennis to appear; and (2) since testimony, if it happens, will be under oath and subject any witness to possible claims of perjury, they will not be forced to testify.

Unusually, Brown will conduct all questioning of witnesses himself. "The appearance or lack of same of any participant in the footsie incident will be germane, but not necessarily conclusive, in the Court's consideration of this matter," he said.

Florida resident Peter Halmos and two companies he owns, International Yachting Charters and High Plains Capital, sued INA in 2008 over coverage of damage to a yacht. The parties apparently have a history of acrimony, with INA accusing the plaintiffs of discovery violations.

The “footsie motions” are “yet another side-show designed to direct the Court's attention away from their own obstructive behavior in this litigation,” INA attorney Frank J. Sioli of Miami said in a brief.

The squabble erupted as plaintiffs' lawyer Juan Carlos Antorcha was cross-examining Dennis over the phone. Johnathan Burke, a paralegal working for Klock's law firm, allegedly “heard a clicking sound, looked around, and noted that Mr. Engerrand was tapping the foot of witness Dennis at different points after questions were asked.”

“Mr. Engerrand, are you tapping Ms. Dennis' foot during any of these questions?” Antorcha asked after Burke texted the photo to him.

“I don't know that I've been tapping her foot,” Engerrand replied. “I assumed there was a pillar next to me, so I'll move down.” For her part, Dennis testified she didn't know he was tapping her foot but Antorcha proceeded to terminate the deposition.

Klock filed the disqualification motion July 30, accusing Engerrand of “unethical” behavior and even comparing his footwork to that of Richard Nixon's secretary Rose Marie Woods, who said her use of the foot pedal of a transcription device caused her to mistakenly erase part of the Watergate tapes.

Burke's photo “speaks volumes,” Klock argued. “What one sees is ... a Rosemary Wood-like [sic] stretch of Mr. Engerrand's foot, as he apparently repeatedly taps the foot of the witness while questions are being asked.”

“The photograph shows only two people who are sitting very close to one another in a small conference room whose feet came into contact,” Sioli responded. “... It reflects a natural position for parties sitting for hours of cross-examination.”

In his hearing order, Judge Brown said the foot-tapping allegations were “quite significant,” but “the burden is on the party making same to support such claims with more than allegations, speculations, and allegedly damning pictures. The Court finds that on this record there is insufficient support for the claims made.”

By Matthew Heller
9/9/10