In Uncategorized on 07/25/2018 at 14:05

It’s an old saw that expertise is so specialized that an expert is one who knows more and more about less and less, until the expert knows everything about nothing. That Obliging Jurist, Judge David Gustafson, is confronted by a problem so abstruse that it needs more than one expert to write one report in Murfam Enterprises LLC, Wendell Murphy, Jr., Tax Matters Partner, et al., Docket No. 8039-16, filed 7/25/18.

And there are two reports with multiple authors.

IRS wants the reports stricken. How can they know whom to cross-examine on which points in the reports?

And they have a trial ruling from Belk, which tossed a two-author report even when both authors were present to testify. You remember Belk, of course; you must have just re-read my blogposts “A Thing of Beauty – Accept No Substitutes,” 1/28/13, and “If At First You Don’t Succeed,” 6/20/13.

Well, off-the-bench trial rulings aren’t precedent for anything.

“We understand this argument to ask us to rely on the Court’s evidentiary ruling in Belk as precedent we should follow here. Although we will not literally strike Exhibit A from each motion, we will not treat as precedent the evidentiary ruling in Belk as we decide how to rule on the motions now pending. Rule 50(f) provides generally that orders (in contrast with opinions) ‘shall not be treated as precedent”. We think that an evidentiary ruling given orally during a trial is similarly nonprecedential.” Order, at pp. 1-2.

Especially when the ruling came in another case and was made by another Judge.

However, to save IRS from cross-examining a multitude of experts, let the Murfams set out which expert wrote what, which expert will testify on direct as to what.

And as trial starts August 6, don’t waste a lot of time with written responses. Judge Gustafson will oblige with rulings at the trial.


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