But in the Courtroom

I’ve been on the case of CLE providers for a long time. “Win your case at discovery” is a long-time favorite of theirs. That movement has produced spin-offs, like winning with pleadings, press and media management, jury selection, and whatnot. The end is not yet in sight.

Hence the title first above set forth at the head hereof, as my sequestered-with-a-Grey-Goose-Gibson colleagues might say.

Why go through a messy trial, with unreliable witnesses, high-priced experts who regularly get shredded on the stand, jurors who might think for themselves, judges who sustain adversaries’ objections and deny ours, hours of preparation, straining to get stuff into evidence against a barrage of flak, endless client handholding, and sweating out verdicts?

Since IRS’ counsel spend far more trial time in US Tax Court than even the hardiest perennials of the Tax Court petitioners’ Bar, I don’t fault the IRS counsel in Bernand T. Swift, Jr. & Kathy L. Swift, Docket No. 13705-16, filed 4/1/21. And it’s no April Fools’ Joke.

Judge Patrick J (“Scholar Pat”) Urda had already fielded a bunch motions in limine (hi, Judge Holmes) last month.

“Two weeks before trial, respondent filed three additional motions in limine. In his first and second motions, respondent asks us to overrule 17 hearsay objections and over 300 relevance objections the Swifts reserved with respect to certain paragraphs and exhibits of the amended first stipulation of facts and the first supplement to it. In his third motion, he requests that we admit over 190 proposed trial exhibits into evidence over relevance and hearsay objections by the Swifts. A week later, the Swifts filed oppositions to each motion broadly sketching the nature of their objections.” Order, at p. 1.

Looks like counsel for both sides (anonymous, thanks to the veil DAWSON spreads over counsels’ appearances; is somebody afraid of the public finding out something?) are running the same play, but IRS is trying to prove that the race is not to the Swift (sorry, guys).

Judge Scholar Pat is not playing.

“At this point in the pre-trial process, the Court is unable to discern the merits of the parties’ respective positions. Accordingly, we will deny respondent’s motions without prejudice so that we might have the opportunity to consider these arguments as to admissibility in the context of trial.” Order, at p. 1.

Judge Scholar Pat rightly eschews these fancy-Dan manœuvres. Go try the case.

Edited to add, 4/2/21: Turns out one can find counsels’ appearances by getting the printable docket list on the Tax Court website. This useful information was buried in a 3/7/21 release note. Why the same information could not be included in the online, non-print version is nowhere explained.