Attorney-at-Law

TRIAL TACTICS?

In Uncategorized on 09/06/2017 at 16:20

Every so often one finds in a T. C. or T. C. Memo., or in a humble Sum. Op. or even humbler order, a promising tactic that might serve well, but I do not recommend those employed by Robert Daniel Rodriguez and Natalia Rodriguez, 2017 T. C. Memo. 173, filed 9/6/17. They’re actually Robert Daniel’s tactics.

I don’t know how these go over in Stanislaus County, or the City of Alameda, and Fresno, San Joaquin, Sacramento, and Contra Costa Counties, all in the Golden State. I’ll let local practitioners comment, if they wish.

Here in the Big Apple, I wouldn’t try any. Our State Court judges have a reputation for testiness that would bode ill for the Bould Laddie who tries any of these on.

Having handed IRS’ counsel nothing theretofore, Robert Daniel, lawyer from Stanislaus County, CA, does as follows.

”At the calendar call…, petitioners, for the first time, produced to respondent over 700 pages of documents including meal receipts, a mileage log, utility bills, car maintenance receipts, loan interest calculations, and a residential lease.  The receipts had names or client matters written on them.  The mileage log consisted only of dates and miles.  The log did not include any information regarding locations between which petitioners traveled; nor did it include any business purposes for the travel.  In addition, the entries in the mileage log totaled 35,087 miles, far fewer than the 83,256 miles reported on petitioners’ …Schedule C.” 2017 T. C. Memo. 173, at pp. 3-4.

If Robert Daniel thought such a jape would sit well with Judge Cary Douglas Pugh, much less with IRS Counsel, he erred.

IRS’ counsel, quick off the mark at trial the next day, grabbed some odds and ends of Robert Daniel’s miscellany, and shredded him on the trial. Robert Daniel was obviously hoping to stall for time. However that may be in Stanislaus County Superior Court, in the “small court” you get a “dission” real fast when you play games.

Rule 91(b) and (c) require all documents intended for use at trial to be exchanged not fewer than 14 days before the first day of the trial session. That doesn’t mean the date the case is actually tried, which may be later than the first day of the session. The sanction for not handing over is set forth in Rule 131(b), which says if you breach the standing pretrial order, which reiterates the 14-day rule for those who tune in late, your evidence can be tossed if the other side is prejudiced.

At trial, IRS’ counsel was able to blow enough holes in Robert Daniel’s 700-page compilation to render same unreliable, and therefore tossed, irrespective of prejudice to IRS, although handing it over at calendar call was also prejudicial.

“The receipts petitioners submitted appear rife with discrepancies and include duplicates and personal expenses.  Respondent identified these issues after one day of review.  With additional time we believe other errors would have been identified, and respondent could have verified the accuracy of the claims that Mr. Rodriguez offered in support of admissibility. Thus this is the kind of evidence that the 14-day rule is intended to protect against.  Mr. Rodriguez, an attorney, had no explanation for his failure to comply with our order and notice, other than that he ‘did not have time to do it’, even though the standing pretrial order was issued five months before trial.  He testified to his extensive court experience.  He should know, then, the importance of complying with court orders.  For this reason we reject his argument that respondent should have filed a motion in limine or sought a hearing or continuance.  Our Rules provide for, and petitioners were warned of the possibility of, sanctions for failure to comply; they should have been aware of the possible consequences.” 2017 T. C. Memo. 173, at pp. 12-13.

Robert Daniel seems to have tried a variation on the “tell the judge I’m busy” gambit, as well. I definitely don’t recommend that one, either.

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