Attorney-at-Law

UNSCRAMBLING

In Uncategorized on 08/19/2017 at 00:04

It is well, if you are an attorney drafting a motion for summary J, to make it easy for the judge to decide in your favor. And not only in a motion for summary J.

IRS’ counsel in Talib I. Karim, Docket No. 17407-15L, filed 8/18/17, needs reminding.

And who better to remind IRS’ counsel gently but that Obliging Jurist, Judge David Gustafson? And in a designated hitter, making easy the late night work of the blogger surfeited with family’s overwhelming hospitality.

Of course the motion is accompanied by the usual declaration, in this case of the SO who handled the CDP at issue here, plus a bunch of exhibits thereto.

Unhappily, IRS’ counsel didn’t marshal evidence and lay bare the proofs.

“The motion itself consist [sic] of 21 numbered paragraphs. However, the factual assertions in the motion are not in a section distinct from the motion’s legal argument. Paragraphs 4-9, and 12-13 appear to consist of statements of fact on which the motion is based (interspersed among paragraphs making legal argument). The SO’s declaration authenticates documents that are attached thereto as exhibits, but the declaration does not otherwise state the facts underlying the motion. It may be that support for the motion’s factual assertions could be found in exhibits, but we decline to take on that project.” Order, at p. 1.

Maybe I’m just an old fogey, but legal arguments get made in a memorandum of law or in a brief, not in the motion itself. Just the facts, ma’am, as the late Jack Webb used to say.

Tal is flying solo in this one, and judges tend to make life a wee bit easier for the hapless pro se.

Howbeit, “Ideally, whether or not the petitioner is self-represented, a motion for summary judgment will include (either in the motion itself or in an accompanying memorandum) a separate section of numbered paragraphs stating the proposed undisputed facts, and each factual assertion will be supported by a citation to a declaration or an exhibit. The Court can therefore more efficiency evaluate the motion, and the non-movant can more fairly be required to respond to the factual assertions.” Order, at pp. 1-2.

So, IRS counsel, your motion is denied without prejudice. If you decide to do it right, you need not resubmit the declaration and exhibits.

I do not recommend asking the judge to do your work. It is an out-of-title assignment.

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