In Uncategorized on 04/14/2016 at 17:06

STJ Daniel A (“Yuda”) Guy is not a member of the kid-glove school of judge-lawyer relations. “Testy” is hardly strong enough an adjective for the wordprocessor lashing he bestows on hapless attorney TK (it used to be a “tongue lashing” when people spoke to one another; now it’s all electronic).

I use initials or made-up names, as always, when practitioners are involved in an even marginally-negative sense. They’ve suffered enough.

The case was stip’d for a Rule 122 on-the-papers. One week before her opening brief was due, TK moves to reopen the record, stating IRS objects, but nothing happens.

STJ Yuda gives IRS a due date for a written objection. Five days before that due date, TK calls chambers to ask about the due date for TK’s opening brief.

Bad move, TK. And, unlike the celebrated Fort Worth City Councilor’s moving youtube declamation, it doesn’t get better.

“The undersigned’s judicial assistant informed [TK] that ex parte communications with the Court should be avoided and that she should file an appropriate motion related to the filing of petitioner’s brief.” Order, at p. 1.

TK, when you’re told something along those lines, remember the sneaker ad: Just Do It.

TK blows it big time (cringe).

“…petitioner filed an opening brief which includes references to the exhibits that are the subject of petitioner’s pending motion to reopen the record. Petitioner’s brief states in pertinent part that ‘For our purposes, we assume the exhibits [that are subject of petitioner’s motion to reopen the record] were admitted, and that they are now part of the Second Stipulation of Facts.’ On [due date], respondent filed an Opposition to petitioner’s motion to reopen the record and a motion to strike the portions of petitioner’s brief that refer to the disputed exhibits.” Order, at p. 2.

STJ Yuda lays as heavy a blast on poor TK as I’ve seen in many a moon.

“Petitioner’s opening brief includes multiple references to two exhibits that are not part of the stipulated record in this case. Ex parte declarations and statements in briefs do not constitute evidence. Rule 143(c), Tax Court Rules of Practice and Procedure. Suffice it to say, petitioner’s counsels’ conduct in unilaterally treating their motion to reopen the record as having been granted by the Court was both unprofessional and unethical.” Order, at p. 2.

As my elder daughter’s classmate was heard to say years ago, “Oooh, what a diss!”

But STJ Yuda, maybe feeling he placed the aforesaid blast a wee bit too hard, says “Considering all the circumstances, the Court will strike petitioner’s opening brief. The Court will grant petitioner time to file either a motion for leave to submit a proper opening brief or another appropriate motion.” Order, at p. 2. (Footnote omitted, but it says TK can go to trial if she doesn’t like the Rule 122 route.).

And the two exhibits were apparently in the “public domain.”

The order is Ivan Nikolskiy, Docket No. 26163-14, filed 4/14/16.

  1. TK is a pro bono volunteer that works with and reports to me. This is a pro bono case that she agreed to take at the NYC calendar. The “mistakes” that caused the Court to make negative comments should have been directed to me – I supervised TK’s efforts. As for everything else, see footnote 3.


  2. I summarized Footnote 3.

    Liked by 1 person

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