And at that point, even so obliging a jurist as Judge David Gustafson (see my blogpost “We’ll Come to You”, 9/18/12) loses patience and delivers an off-the-bench designated hitter to Henry J. Lazniarz & Gina M. Lazniarz, Docket No. 31002-09, filed 11/14/13.

Henry J. is a real estatenik with a somewhat lackadaisical system of accounting for his business expenses. Henry J. had a trial last year, represented by his real estate development attorney (Lawyer No. 1), who put in minimal evidence. Henry J. saw that the trial did not go well, so he went to the bullpen.

Judge Gustafson: “New counsel for petitioner entered the case after the trial, filed petitioners’ post-trial brief, and moved for a new trial, arguing that ‘little evidence was adduced at trial. …the Court granted that motion on the grounds that petitioners’ prior counsel had not represented them adequately.” Transcript of opinion, at p. 4.

Judge Gustafson tells the parties “…the trial record would be made anew at the second trial, and that the parties should be careful to offer into evidence at the second trial all the evidence on which they intended to rely, whether or not it had been offered or received into evidence at the first trial.” Transcript of opinion, at pp. 5-6.

Judge Gustafson lets in whatever was stipulated in Trial No. 1, based on Rule 91(c), and asks what else Henry J.’s new lawyer wants. He puts in one carbon copy of a check and a summary of evidence (per FRE 1006), and tries to get in a billing summary prepared for Trial No. 2 by Lawyer No. 1, who doesn’t testify, so the billing summary gets tossed as hearsay.

Henry J.’s accountant does testify, but all he says is that he assumed everything he was told was authentic and he tried to allocate whatever was deductible.

You can read Judge Gustafson’s discussion of Henry J.’s testimony; I need not paraphrase.

Finally, the Obliging Judge admonishes Henry J. and Lawyer No. 2: “Thus, for most of the disputed deductions, no detailed testimony was given to corroborate the substantiating documents or to connect them to the business activity. When both parties had rested at the conclusion of trial, the Court pointed out to petitioner that he had not testified on most of the deductions, and petitioners’ counsel answered that petitioners had given the evidence that could be presented in the time available. Since it was late in the day, the Court asked whether petitioners wished to resume trial the next day and put on additional evidence, but they declined. Thus, although the petitioners were given a second trial, and although they were warned at that second trial that their proof might be lacking, they failed to put on evidence sufficient to carry their burden of proof.” Transcript of opinion, at p. 11.

Rule 155 beancount to follow. With the five-and-ten penalty.

There’s a limit even to the most obliging judge.