In Uncategorized on 04/05/2013 at 16:14

I’m quoting an old blogpost, “Thoroughness”, 10/27/11, and am about to reiterate, but gently, a very old rant. Adelbert Moot delivered a lecture at my alma mater in 1914 (and no, I wasn’t in attendance then) in which he spoke of thoroughness as being that which “settles the question in more cases than any other one thing as to whether or not a person will be successful.”

Well, Judge Buch encounters a lawyer who isn’t, but gives the client a break, in Swanson-Flosystems Co., Docket No. 27975-11.

It’s three weeks before trial (and remember Judge Buch gets peevish if attorneys aren’t ready to roll three weeks before trial; see my blogpost “Throwing the Buch,” 3/5/13), and SwanFlo’s attorney is begging for a continuance (that’s called an adjournment whence I come).

This is a monumental no-no under Rule 133; if you don’t have “exceptional circumstances” (like a death certificate), move to continue thirty days or more before the date, time and place certain, or be denied as dilatory.

Here’s SwanFlo’s attorney’s sad tale: “Petitioner’s various arguments in favor of a continuance, distilled to their essence, are all premised on a lack of preparation: the case appeared headed for settlement, and thus it was not adequately prepared; the case was more complex than counsel anticipated, and thus it was not adequately prepared; a flurry of procedural motions by respondent created a significant burden, and thus the case was not adequately prepared; respondent provided inadequate discovery responses, and thus the case was not adequately prepared.” Order, p. 1 (Footnote omitted, but Judge Buch notes that if SwanFlo’s attorney wasn’t happy with IRS’ discovery responses, s/he never made a motion to compel proper responses.)

Automatic admittee to Tax Court, ya think?

SwanFlo’s attorney admits in the motion for a continuance that s/he is outclassed and wants to add counsel. That’s not a reason for continuance, and IRS yelps they’ll have to start from scratch when new counsel (or supplementary counsel) waltzes in.

But Judge Buch has a heart. There’s $2 million at stake, Swan-Flo will be seriously prejudiced if they can’t go to the bullpen, and it doesn’t look like Swan-Flo or their attorney was playing tactical games. And even though Swan-Flo’s attorney didn’t mention it in his/her motion papers, the bullpen responded and the additional counsel has filed their notice of appearance, so “(T)he hiring of additional counsel, however, provides some assurance to the Court that, if a continuance were to be granted, this case would be adequately prepared.” Order, p. 2, footnote 2.

Hope springs eternal, eh Judge?

Now IRS will be inconvenienced, it’s true, and won’t have the advantage of an inept adversary (as they usually do, encountering the self-represented and the usual run of automatic admittees; rather like shooting very large fish in a very small barrel), but that’s not prejudice.

So time out, Swan-Flo, let your relief pitcher warm up, and to move things along, here’s a pretrial scheduling order for your reading pleasure. Follow it.


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