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Magistrate Judge Brown Schedules "Footsie" Evidentiary Hearing

I've never heard of this kind of evidentiary hearing, but I guess we're somewhat in new territory:

The Court finds the allegations made to be quite significant (emphasis added), 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 (emphasis added). However, there also are no sworn statements of any kind supporting the position of either side in this odious squabble ... and the tenor of the Court's Order and Notice should not be misconstrued to equate with some predisposition as to the merits of this claim.

Therefore, and the Court being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that a hearing has been set on these motions for Thursday, October 7, 2010, at 10:00 A.M., at the United States District Court, 301 North Miami Ave., Miami, Florida, Tenth Floor. At least 24 hours prior to said hearing the parties are required to meet and confer in a good faith effort to resolve the issues illustrated in this Notice.

(a) Two (2) hours (and no more) have been scheduled for this hearing. The only matter that will be taken up at this time is the factual offerings of the parties.

(b) No discovery will be permitted - though the parties can agree to whatever discovery they wish - at their own peril.

(c) Connie Dennis is requested to appear and testify, under oath, regarding the "footsie" incident(s). She may have counsel representing her if she wishes.

(d) Kenneth Engerrand is requested to appear and testify, under oath, regarding the "footsie" incident(s). He may have counsel representing him if he wishes.

(e) The Court notes that it has "requested", not ordered the appearances and testimony noted, supra. There are two reasons for this: (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.

(f) Any other witness may be presented for testimony by any party - however, questioning will be done only by the Court - though the Court will allow questions to be submitted to it for consideration (emphasis added).

(g) 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.

So the Court has scheduled an evidentiary hearing where no witnesses are obligated to appear, where counsel cannot ask any questions but can make "factual offerings," and where it will be "germane" if someone who is requested but not obligated to appear doesn't show up.

Given the history of this case, that all makes perfect sense.

(Note -- photo above purely my own personal fantasy impression.)

Full post as published by South Florida Lawyers on September 03, 2010 (boomark / email).