In Uncategorized on 04/15/2019 at 15:49

The old Cockney personification of the affidavit gives me the title for today’s practice tip from that Obliging Jurist, Judge David Gustafson.

Thanks, Judge, it was a slow news day at calendar call this morning on our Minor Outlying Island off the North American Coast. Though Office of Chief Counsel personnel were friendly, everything was off the record. And The Jersey Boys, ably assisted by the NY County Lawyers’ volunteers, cleaned up the calendar, so ex-Ch J Michael B (“Iron Mike”) Thornton could engage litigants with his Southern courtesy unruffled.

But here’s the tip. Jonathan C. Bloch, Docket No. 9028-18, filed 4/15/19, stiped to facts and went in on a Rule 122 all-in-the-papers, making a joint motion with IRS.

The motion papers say no trial necessary, and the stip says it all.

Except the stip says “either party may introduce other and further evidence not inconsistent with the facts herein stipulated.” Order, at p. 1.

So when JC puts in his opening brief, he attached three (count ‘em, three) affidavits nowhere to be found in the motion paper or the stip.

So Judge Gustafson, like a Nürnberg Meistersinger, gives JC a “Mein! Was ist das?” Only he does it thus.

“Looking solely at the joint motion, one would suppose that Mr. Bloch was not entitled to submit affidavits, since the motion seems to state that the agreed-upon record of the case consists of the pleadings and the stipulation. On the other hand, looking solely at the stipulation, one would suppose that Mr. Bloch might have been entitled to submit ‘other and further evidence’. Order, at pp. 1-2.

Looks like IRS’ boilerplate was put in the stip to allow Boss Hossery if previously missed, or open the door to contentions not yet contended (see my blogpost “The Discovery Waltz,” 4/9/19, where Judge Gustafson cracked down on that gambit). But like most boilerplate, this one might leak if subjected to unusual strain.

“We do not know what the parties’ actual intention was as to the submission of supporting affidavits, nor whether they shared a common understanding. Affidavits are, by their nature, hearsay, and they are therefore generally not admissible into evidence. See Fed. R. Evid. 802. However, an affidavit may be received into evidence if the other party does not object. And parties submitting a case under Rule 122 could include in their stipulation an affidavit that they agree is to be received in lieu of live testimony. (Sometimes the parties stipulate that, if called as a witness, the affiant would testify as indicated in his affidavit.) The stipulation may state that the other party does not stipulate to the truth of the content of the affidavit but agrees that the affiant would so testify if called. Where an affidavit is submitted in such a manner under Rule 122, it does become evidence in the case; but Rule 122(b) warns the parties that submitting the case under that rule does not alter the burden of proof. Thus, a party deciding whether to agree to submit his case under Rule 122 and to rely on affidavits (rather than obtaining live testimony at a trial) should consider that the written affidavit–not presented by in-person testimony, and not subject to cross-examination–may simply not be persuasive and may therefore not succeed in carrying the party’s burden of proof.” Order, at p. 2.

Remember, “hearsay” is when the party supposedly testifying isn’t in the courtroom, so can’t be cross-examined, and can’t be observed by the trier of fact (judge or jury). Judges don’t like hearsay. If cross-examination is “the greatest legal engine ever invented for the discovery of truth,” then observing a witness’ body language and tone of voice is a close second.

So call Judge Gustafson no later than Friday, to set up a phoneathon to sort out exactly what all this means.

Practitioner, watch those affidavits. They’re great for sculpting the responses of a discursive witness, but might could be a lot less convincing than said discursive witness on the stand.

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