In Uncategorized on 02/07/2017 at 13:59

It’s often been a happy occasion for me to felicitate that Obliging Jurist, Judge David Gustafson, for his courteous and obliging treatment of litigants.

And today he has a practice hint for Costello Accountancy Corporation, et al., Docket No. 14544-15, filed 2/7/17, that the rest of us might find of use even when before a judge less obliging than he (if such there be on the Tax Court bench, which I by no means assert; I love everybody).

Costello and the et als were on for what was booked as a two-day trial, date and time certain, when IRS’ counsel suffered a medical emergency.

Clearly, this threw a big spanner in the cliché, making the Costellos, their attorneys, and their witnesses less than thrilled. So now they want date and time certain again, to make sure all the dogs and ponies are dress-right-dress for The Big Show, which is now on in the City by the Bay.

Judge Gustafson is his usual understanding self.

“We certainly approve of petitioners’ undertaking to make their arrangements for the trial in advance; we endorse their intention to economize on the cost of securing the attendance of witnesses; and we sympathize if they feel any frustration about, or suffered any expense in connection with, the prior continuance of the cases.” Order, at p. 1.

But Judge Gustafson won’t tie up his calendar with a definite maybe.

“However, it is the practice of the undersigned judge not to grant a time and date certain until the parties have completed the stipulation of facts required by Rule 91(a). The stipulation process often narrows issues in a case, sometimes reduces the estimated time of trial by eliminating the need for one or more witnesses, and not infrequently yields a settlement of an entire case. Until that stipulation process has been completed, the parties have not exhausted the reasonable prospects of simplifying or settling the case. If in these cases the Court were now to grant the time and date certain (and thus were to commit Tuesday and Wednesday of the five-day calendar to this case), then the Court would obviously not schedule other cases for those two days but would limit them to the remaining days; and if these cases then settled at the last minute, those two of the five days of the calendar would likely be wasted, at a probable cost of inconvenience to parties in other cases and at a likely cost to the Court in unnecessary lodging expenses of the judge and trial clerk.” Order, at pp. 1-2.

I don’t doubt Judge Gustafson, eager to save the fisc a few bucks, doesn’t put up at the Kimpton Sir Francis Drake (a/k/a The Klipton), the Axiom, or even my old favorite the Stanford Court. Probably he has said trial clerk use or, and shoot for The Deal of the Day. Or maybe he has the new Motel 6 My6 app.

Howbeit, let the parties stip away their cares and woes (even maybe to the extent of stipulating to what witnesses will say); let IRS’ counsel, who caused this fracas even if involuntarily, be super-obliging (even as Judge Gustafson is obliging); let the expert witness do the Rule 143 pas seul; and maybe if Costellos’ witnesses are extremely douce, subpoena them for opening day and have them on call for the date and time certain, if granted.

And Costellos’ counsel can always move again for date and time certain, even though this motion gets tossed.

Takeaway- A good checklist for a perfect world, and even for an imperfect one.

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