And Undesignated As Well

On a summer Friday, with a couple of cold Ourobouros just two hours away, l wish Judge Laro would designate his orders. That would save me from plowing through six (count ‘em, six) pages of “pay the $60,” “file a status report,” and “give me a copy of the SNOD,” which comprise the bulk of Tax Court orders.

By the way, an Ourobouro has no relation to Eric R. Eddison’s 1922 fantasy novel about a worm. Rather, this is a delightful concoction, a piña colada made with Ypioca Ouro cachaça, “aged for 2 years in Brazilian Balsamo barrels, acquiring a distinctive flavour, bouquet and golden colour”. Try it, you’ll like it. And after two of them, you’ll like it even if you didn’t to begin with.

Back to taxes.

Judge Laro has a bushelbasketful of motions in limine amongst the battling experts in Exelon Corporation, As Successor By Merger To Unicom Corporation And Subsidiaries, et al., Docket No. 29183-13, filed 8/14/15. There’s about a dozen more of such motions, but I chose this one because it seemed the most relevant.

The joust concerns nonlawyer experts discussing clauses in contracts.

Judges get testy when “experts” try to interpret the law.

“Petitioners move to exclude the respective paragraphs and associated footnotes and citations therein, from these reports on the grounds that respondent’s expert, Professor X, interpreted contractual provisions as a basis for his opinion that the leases pose a risk of loss to petitioners. Petitioners argue that if this Court does not permit petitioners’ expert to interpret contract provisions as a basis for his opinion that the leases pose a risk of loss to petitioners, this Court should not permit respondent’s experts to interpret contract provisions as a basis for their opinions that the leases pose no risk of loss to petitioners. Petitioners do not object to experts applying their understanding of contractual agreements to form their opinions.” Order, at p. 2. (Name omitted).

How interpreting differs from applying one’s understanding I fail to understand, but Judge Laro does.

“Opinions on law are superfluous and inadmissible, since the court can determine the law equally as well. The Court can exclude an expert’s testimony and report where such expert and report make legal opinions as to the meaning of contractual terms at issue which they believe governs a party’s conduct. Expert opinions, however, that are tangentially based on the expert’s understanding of the contract may be permitted.” Order, at p. 4. (Citations omitted, but save them for your next memo of law).

And Judge Laro is satisfied that all the expert reports and testimony are off on a sufficient tangent, so he’ll let in their understanding of what the contract says, as it impacts their expertise.

If face-offs about expert testimony are your thing, there’s good reading today. If not, try an Ourobouro.