It must be nearly sixty years since my boyhood friend Richard inveigled me to the old Marshall Chess Club on Tenth Street to watch the game at which he excelled and I could never assimilate. From that rather embarrassing experience I came away with the title for today’s blogpost, which features two such gaffes.

Finger-fehler (German: means “finger errors”) are errors made by touching the wrong piece or pawn at chess, which require the errant party to move the piece or pawn, notwithstanding that the party intended not so to move or that any such move would spell disaster. There’s even the celebrated Finger-Fehler Mate, but I’ll spare you.

Today we have two examples thereof.

Leading off, Mercedes Ochoa-Bunsow, Docket No. 21759-13, filed 1/15/15.

Merc claims her lawyer signed a stip of settled issues and a stipulated decision, to which she did not agree. She claims she never knew, never consented, never signed, fired lawyer and brought in new counsel (who enters appearance).

Merc claims her former lawyer was going to withdraw and also she quotes from a letter supposedly sent by former counsel admitting his deeds, but doesn’t produce same. Merc claims her new counsel will show how the stips are wrong.

Not good enough, says Judge Nega, and holds Merc to the deal.

The stips are clear enough, contract law governs, Rule 23(a)(3) requires either party’s or counsel’s signature (not both, although see my takeaway infra, as my small-batch-craft-Bourbon-drinking colleagues would say), and unless you can show real injustice, stips stand.

“This Court has repeatedly declined to vacate a stipulation for settlement. The Court regularly enforces settlement stipulations, written or oral, unless for reasons of justice a party should be relieved from the stipulation. A stipulation is treated like a contract and general principles of contract law are used to determine whether a settlement has been reached and whether it is binding and enforceable. ‘Under such principles, we enforce a stipulation of settlement that has led to the cancellation of the trial, absent a showing of lack of formal consent, fraud, mutual mistake, or some similar ground; a mistake by just one party to a stipulation of settlement is not a sufficient ground to disregard the stipulation.’ Order, at p. 3 (Citations omitted, but check them out carefully.)

So Merc is hit with a bushelbasketful of deficiencies. What she will do to her former lawyer is nowhere stated, but I most respectfully urge my readers not to find out what possible remedies she may invoke, should a like event befall them in their own cases.

Next is “Samuel Israel, an attorney”, but he’s only a bit player in the ongoing, long-running drama Pacific Management Group, BSC Leasing, Inc., Tax Matters Partner, et al., Docket No. 6411-07, filed 1/15/15. There are forty (count ‘em, forty) cases under this rubric, but one will suffice to lead you into this morass.

Sam an attorney is claiming attorney/client privilege or attorney work product privilege (Order, at p. 1) for some documents in the trial subpoena duces tecum he got back on October 30 last year. Sam an attorney didn’t show on the trial date (this past Monday) and hadn’t told IRS or Judge Lauber that he wouldn’t.

The documents in question, both paper and electronic, related to “the arrangement”, which is apparently what is at issue in these cases.

On Tuesday, Sam an attorney proffers a privilege log listing a dozen documents. But Sam an attorney never mentions e-mails.

Judge Lauber is kinder than I would have been, were I a Tax Court Judge (which I thank whatever gods may be will never happen).

Of course Sam an attorney must produce all the e-mails, unless he can claim privilege for any.

Worse, Sam an attorney’s privilege log lists a certain letter from Sam an attorney to petitioners’ trial counsel (who also was one of the creators of “the arrangement”). Though this case gives me grounds for plenty of them, I will spare you my usual conflict-of-interest remarks.

But yet worse: as one of the dozen was handed over at discovery and stipulated into the trial record, Judge Lauber finds privilege waived as to all Sam the attorney’s dozen documents, unless he can establish which specific ones do not relate to “the arrangement”.

So Sam has until 5:00 p.m., tomorrow, to produce at the Courthouse all the foregoing for in camera inspection, to claim whatever privilege he can for the e-mails, and to claim (in writing) whatever of the dozen do not in any way relate to “the arrangement”. And if Sam an attorney fails to do any of the foregoing, Sam an attorney is due in Court next Tuesday in person at 0930.

Takeaway Number One– If you’re doing a stip settling a case, have the client sign it. And make sure the stip says in bold-faced type “I the client have to pay $Y now”, with the client’s initials next to it. Keep a fully-signed duplicate original in a safe place.

Takeaway Number Two– Don’t wait until trial has begun to object to a subpoena duces tecum you got two months before. And if you have trial counsel, make sure they haven’t already handed over what you claim is privileged.

Takeaway Number Three– Judges get peeved at last-minute shenanigans. Don’t pull them unless well-prepared for the consequences, including without limitation judicial and client retaliation when they fail.

Takeaway Number Four– If not heeding the three (3) previous comments, keep one bottle of that small-batch-craft Bourbon handy; you may need it. Me, I’m an Old Grand-Dad guy.