By Margo Kirchner
A federal judge chastised lawyers for acting “like fourth graders in a lunchroom,” but said labeling as “lunging” or “assault” a lawyer’s actions when he slammed a pen on a desk in front of a deposition witness went too far.
U.S. District Judge Pamela Pepper said she found it “shameful” that she and seven attorneys had to spend time in a hearing discussing attorney behavior.
The pen incident occurred in October, during the deposition of Corrections Officer Terina Cunningham in a lawsuit brought by Shadé Swayzer over the death of her newborn daughter, Laliah, in the Milwaukee County Jail in July 2016.
Swayzer and Laliah’s estate sue former Sheriff David Clarke, Milwaukee County, several jail employees, Armor Correctional Health Services, Inc. (the contractor providing medical services at the Jail), and several Armor doctors and nurses.
Swayzer’s lawyer, James J. Gende II, lost his temper and slammed his pen into the table in front of Cunningham and attorney Douglas S. Knott, who represents Cunningham and the county. Knott immediately halted Cunningham’s deposition and later sought a court order to prevent Gende’s participation in future depositions in the case.
Armor’s lawyer, Michael P. Russart, also moved to preclude Gende from conducting future depositions.
Knott said at a later hearing that Cunningham, the corrections officer, was shaken by Gende’s outburst and lunging. Knott argued that Gende’s conduct constituted assault and merited more than an admonishment.
Russart, for Armor, said he sought to protect his witnesses and argued that there was no “reset button” or “Mulligan” for Gende’s conduct.
Counsel for Gende, Terry E. Johnson, admitted that Gende showed a lapse in judgment but argued that barring Gende from future depositions was too severe a sanction for an incident lasting five seconds.
Pepper, in her ruling, said the lawyers’ filings in the case showed finger-pointing and snide comments in front of witnesses. Pepper said she saw an “ongoing toxic relationship” between Gende and Knott.
“Something needs to change” in their interactions, she said.
Gende, Pepper said, violated rules governing the treatment of deposition witnesses, which justified an end to additional questioning of Cunningham.
But Pepper found that barring Gende from conducting future depositions in the case would be a disproportionate sanction.
Instead, she indicated that all depositions should be videotaped. In addition, the lawyers must not argue in front of witnesses, and they are to call the court with any significant problems arising during a deposition.
She warned of greater sanctions should additional deposition problems occur and said she would monitor the attorneys’ civility. As she put it in her signed minutes of the hearing, she will, if necessary, “review every video to make certain that the lawyers were treating each other, and the witnesses, with the respect and civility the profession demands.”
In another matter related to the case, U.S. Magistrate Judge William E. Duffin this week agreed with former Sheriff David Clarke that Clarke’s 2016 personal calendar and whereabouts are not relevant to claims in the case. Duffin ruled that Clarke did not have to produce the calendar or identify his location on dates when five inmates died in custody.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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