Attorney-at-Law

TAG-TEAM EXPERTS

In Uncategorized on 07/27/2018 at 15:07

Judge David Gustafson is still wrestling with Murfam’s tag-team of experts (sorry, guys). For backstory, see my blogpost “Who’s On First?” 7/25/18.

Today it’s Murfam Enterprises LLC, Wendell Murphy, Jr., Tax Matters Partner, et al., Docket No. 8039-16, filed 7/27/18.

As usual, there is a plethora of players on the ice. And though usually obliging to a fault, Judge Gustafson cannot allow this Calgary Stampede.

“The listing of multiple authors in an expert report is an anomaly in the Tax Court, given this Court’s unique procedure regarding expert testimony: Under Tax Court Rule 143(g)(1), every (singular) ‘expert witness’ must submit a (singular) ‘written report’; and under Rule 143(g)(2) ‘[t]he report will be … received in evidence as the direct testimony of the [singular] expert witness’. A report written by multiple authors cannot really be received into evidence as the direct testimony of one of them. In a trial each witness gives his own testimony and only his own testimony, and the witness then is subject to cross-examination that is limited to the scope of his direct testimony. Fed. R. Evid. 611(b).” Order, at p. 1.

There are seven (count ‘em, seven) motions in limine. The Murfams have one, and the IRS the rest. All denied without prejudice.

So Judge Gustafson held a phoneathon, and got the following result.

“… Murfam may intend that one or more of these five reports is in fact the report of, and reflects the opinions of, one single expert (whom we will call ‘the principal expert’) who warrants the entire report; that Murfam may have named the other experts (whom  we will call ‘assisting experts’) only to indicate their work on the report as helpers of the principal expert; and that Murfam may intend to offer the report as the opinion of only that principal expert and to call only that principal expert as their witness.” Order, at p. 2.

But anyway, Murfam must indicate in each report which expert drafted what, have all of them available for trial whether or not they testify, and let Judge Gustafson have the principal experts’ names prontito.

And IRS and Murfam, please keep it short.

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