Attorney Misconduct, Depositions, Legal Ethics, Paralegals, Weirdness

Will Footsies During a Deposition Lead to Sanctions?

The alleged foot tapper

A pair of motions are bouncing around email inboxes this week, thanks to the “foot-tapping lawyer.” (This has nothing to do with Larry Craig, so read on without fear.)

It all started in July, when Florida law firm Rasco Klock sent a paralegal to Wilmington for a deposition. The firm is representing a plaintiff suing an insurance company, but one of their lead attorneys, Juan Carlos Antorcha, had to remain in Miami and conduct the deposition by video, with the paralegal handling the exhibits in person.

During the deposition of a witness for the defense, a strange noise caught the attention of the Perceptive Paralegal. After hearing clicking, he peeked beneath the table and saw a defense attorney’s foot tapping the foot of the deponent. He snapped a photo with his smartphone and sent it to Antorcha, who confronted the defense and halted the deposition. Rasco Klock then filed a very angry motion for sanctions, accusing the defense attorney of coaching the witness through foot tapping.

From the motion:

Before accusing a lawyer of acting in an unethical and unprofessional fashion, a fellow lawyer must think long and hard. Was the breach intentional? What were the circumstances? Was there any sense of contrition? Could the offending lawyer believe that his conduct had been appropriate?

The lawyer accused of foot-tapping is Brown Sims shareholder Kenneth Engerrand. On every single page of the 13-page motion for sanctions against him is the incriminating footsie photo…

Here’s the photo:

In their motion, the Florida attorneys note how awkward this looks. They clarify that the “pink foot belongs to [the deponent], the attacking black shoe to Mr. Engerrand.”

The Florida lawyers write:

For the young’uns (like me — I had to Google), Rose Mary Woods is this woman.

You can read the full outraged motion here: Part 1 [PDF] and Part 2 [PDF]. Enjoy the over-the-top language.

Brown Sims says this is an unfair attack, and filed a reply [PDF] to the motion. Included is the conversation that took place after the tapping was alleged:

Brown Sims maintains that nothing improper occurred and that this was a “natural position for parties sitting for hours of cross examination.”

Some depositions are boring. Some are exciting. Some are really weird. Regardless, sound advice is not to put your foot in your mouth… or on the deponent.

Motion for Sanctions Due to Foot Tapping (Part 1 of 2)
Motion for Sanctions Due to Foot Tapping (Part 2 of 2)
Response to Plaintiff’s Motion for Sanctions

(hidden for your protection)

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