In Uncategorized on 09/23/2015 at 19:56

He likes to propound conundrums, but is no fan of dilatory fiddling; he’s always ready to help or oblige, however, with timely hints and practical suggestions.

And he designates his guidance freely.

He’s that Obliging Jurist, the open-handed and many-handed, the blogger’s friend, the pride of Bob Jones University–(drumroll)– Judge David Gustafson.

And Judge Gustafson has one for the books in Estate of Blanche L. Howard, Deceased, Mary L. Howard, Executor, Docket No. 30306-13, filed 9/23/15.

Mary L. (hereinafter “Ex’r”) wants a continuance. She’s shedding one lawyer and picking up another. Oh yes, and her expert witnesses all work for the ex-lawyer, so she needs time to get a replacement.

And she’s asking thirty-one (count ‘em, thirty-one) days prior to trial.

Judge Gustafson, patient and obliging as always, is not amused.

He entitles his disquisition a “tentative discussion.” State Court judges of my acquaintance would not be so douce.

“The September 18 motion for a continuance was filed 31 days before our October 19 calendar call. Such a motion filed 30 days ahead would be presumptively dilatory, since Rule 133 provides–

“A motion for continuance, filed 30 days or less prior to the date to which it is directed, … ordinarily will be deemed dilatory and will be denied unless the ground therefor arose during that period or there was good reason for not making the motion sooner.

“–but of course it does not follow that a motion filed at least 31 days prior will necessarily be deemed not dilatory. We do not yet perceive here any ’good reason for [petitioner’s] not making the motion sooner’ than September 18.” Order, at p. 3.

Ya know, I forgot to mention that Ex’r is the target of a grand jury investigation, along with an outfit called Nu-Way, the valuation of whose promissory note is the main issue in this case.

Now while it is difficult for the same party to bear the burden of proof in civil litigation with one branch of government while defending herself in a criminal proceeding against another, nonetheless that unhappy circumstance cannot be manipulated to delay the scales of justice.

Ever since last December, Ex’r was dawdling, ignoring discovery and causing the usually punctilious Judge Gustafson to get a date wrong. No, Judge, Ex’r couldn’t have ignored a motion made in December, 2011, in a case with a 2013 docket number. See Order, p. 2, bullet point 3.

Ex’r knew in March of this year about the grand jury, never told the Court until last week, and while Counsel One was on the way out, Counsel One held a teleconference with IRS and Judge Gustafson and assured everyone that the expert’s report would be filed timely. It was filed, but late.

Three days after said teleconference, Counsel Two shows up and moves to continue.

I love it! Takes me back down memory lane, to what we called in the days of our youth “Court Street tactics.” This referred to certain attorneys and counsellors at law who inhabited offices on Court Street in Brooklyn. They made litigation gameplaying into an art form.

By the way, the “employed” expert witness sounds like a Kovel ploy, to give the witness Section 7525 cover as an employee of Ex’r’s counsel.

IRS says mox nix, we’re concerned with Nu-Way’s financial health and the worth of the promissory note back when the late Blanche laid hold of it. Ex’r’s subsequent shenanigans are nothing to the point, even though Ex’r, as an officer of Nu-Way, tried to cookie jar some earnings to make the note look less good and thus confer a gift upon the late Blanche. That part of the story is for the criminal case.

And most of the valuation will be based upon documentary evidence, says IRS.

Great, says Judge Gustafson, but lest IRS figure they might play Perry Mason and call Ex’r, “…if respondent were to attempt to call the executor (or any other grand jury target) as witness at the trial, the Court would not expect to draw any negative inferences from an invocation of the Fifth Amendment unless respondent had first given to petitioner a detailed statement of the facts that respondent expects to elicit during testimony. This either would make it possible for the parties to stipulate those facts (rendering testimony unnecessary) or would disclose the subjects (if any) as to which it is not true that (as respondent has asserted) the facts ‘will necessarily be reflected in transactional documentation’. To the extent the executor’s testimony might be helpful simply ‘to give context to documents’ (Obj. at 14), the Court would expect respondent to be especially cooperative in the stipulation process in order to enter those contextual facts into the record without testimony, wherever that is possible.” Order, at pp. 4-5.

But just to keep everybody on their clichés, everybody has until Friday to read, mark, learn and inwardly digest Judge Gustafson’s lucubrations, get hold of the Chambers Administrator, and get on the horn on Friday. And e-file their motions and supplements on Friday, too.

Who says taxes are dull?


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