In Uncategorized on 12/04/2015 at 16:07


Judge Gustafson, as obliging as always, bounces IRS’s motion for summary J a second time in a designated hitter, Cornelius L. Jones, Docket No. 5166-15L, filed 12/4/15. I didn’t blog the first bounce, which took place back on November 24, as I had other cases to deal with.

Howbeit, IRS’ counsel, apparently overstressed with the weight of work, once again fails to correct an important defect in previously-bounced papers. “…the factual assertions are not in a section distinct from the motion’s legal argument.” Order, at p. 2.

Remember Rule 121(d). Undisputed facts must be separately and clearly stated. Here, IRS’s counsel provides a “Factual Background,” but what is alleged there isn’t sufficient, and the remaining allegedly undisputed facts are sprinkled among the legal arguments.

Judge Gustafson hasn’t forgotten the in-the-trenches perspective he obviously had in his pre-elevation-to-the-bench days.

“We appreciate that respondent’s counsel must accomplish a significant volume of work to prepare for a calendar of cases, and that respondent must seek reasonable economies of scale in the handling of recurring and routine issues. However, a motion for summary judgment is not a routine experience for the typical self-represented petitioner but is instead a unique, first-time event. Experience teaches us that there is a risk that some petitioners may fundamentally misunderstand the nature of a motion for summary judgment (mistaking it for a pretrial memorandum that can be opposed at trial, or even for an order of the Court) and that many petitioners will find the task of responding to the motion to be very challenging. To maximize the chance that our cases will be resolved correctly on their actual merits, the Court must attempt to assure that, as much as possible, motions for summary judgment will be comprehensible to and susceptible of response by a non-expert petitioner of average intelligence.” Order, at pp. 2-3.

Practitioner, what is for you just another day in the office may well be maximum-trauma to the civilian.

So Judge Gustafson joins Judge Holmes in the K.I.S.S. club. See my blogpost “Write Like A Human Being,” 1/9/15.

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