In Uncategorized on 03/20/2019 at 18:17

I’m a great fan of summary judgment. See my blogpost “Summary Judgment – A Causerie,” 3/13/14. But the present Rule 121 needs a tweak. It allows the motion after pleadings are closed, but not later than sixty days before the scheduled trial session, without leave of court. And while Rule 121 carries a caveat that the motion cannot delay the trial, it sure can disrupt trial prep.

I routinely see IRS making summary J motions just barely outside the 60-day pretrial cut-off.

Here’s Linda Archie, Docket No. 7124-18L, filed 3/20/19. Trial is set for 4/15/19, IRS moved for summary J 2/14/19, and Linda replies 3/18/19, with exhibits. So Judge Goeke orders the parties to show up at calendar call, argue the motion, and set a date and time certain for trial.

This is just an example, and I’m not picking on Judge Goeke, nor on IRS’ trial counsel. There are bushelbasketsful of such motions, timed thus. The Rules say what they say; if they help your side, use them.

Now I know nothing of the facts of Linda’s case. From a docket inquiry I see she has counsel, she petitioned last April, IRS answered last June, and notice of trial was served last November. There are no discovery motions, and none directed to the pleadings. Therefore, I assume the parties were happy with whatever they pled, and Branertoned with no problems.

So if they had no discovery problems, and they knew in November that trial was on for April, even with the Great Shutdown in between, had IRS not the slightest inkling that there were no material questions of fact until last month?

Maybe it’s a good tactic to move for summary J at the last second, if the other side needs to assemble witnesses and documents and prepare for trial. It’s rare that witnesses can show up at the last minute, especially if trial is not in their home town or place of work, even if transportation and lodging can be arranged. Plenty of trials cannot be concluded in a single day. And anyone who has ever tried a case with witnesses knows that, television shows notwithstanding, it’s not only kids who say the darnedest things.

Old Sun Tzu, China’s master military mind, said the best way to win was to disrupt the enemy’s preparations. Viscount Field Marshal Slim of Burma, who had perhaps not read Sun Tzu but knew his doctrines, used them effectively.

To forestall repetition, perhaps a revision of the summary J cut-off rule is something to consider.

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