The CLEfloggers haven’t homed in on this one yet, but I offer it to them free, gratis, and for nothing, as Judge Christian N. (“Speedy”) Weiler has a bombardment of motions in limine (to exclude or preclude) both sides’ experts.

Both IRS and Jackson Crossroads LLC, Greencone Investments LLC, Tax Matters Partner et al., Docket No. 12235-20, filed 1/5/24, are sniping at each other’s experts, and Judge Speedy Weiler has to clean up the battlefield.

To begin with, Judge Speedy Weiler invokes FRE, Daubert and Kumho Tire. So he’s “gatekeeper,” or more accurately goalkeeper, as the shots just keep on comin’. The expert must furnish a written report as his/her direct testimony (Rule 143), whereby to enlighten the trier of fact on matters of fact outside common knowledge.  Relevant, reliable, well-supported, and untainted by wholly speculative opinion are the signposts.

One report is a collaboration, the expert relying upon and adopting the conclusions of various other experts who were in on the tackle. That’s OK; adoption let them in.

A cover letter is sufficient signature to satisfy Rule 143(g), and again the results of others are adopted, although the word “adopted” is not used. Order, at p. 3.

Another petitioner’s expert is faulted for filing “…a two-page letter from Mr. H, which spoke about a ‘Permit and Compliance Synthesis Report’ written by him, a resume, and what respondent calls ‘589 pages of attachments.’ Additionally, respondent asserts that Mr. H’s compensation for his testimony was listed, but his compensation for authoring his report was not listed, which is another, independent failure to meet the requirements of Rule 143(g). The Court finds that respondent’s objections to Mr. H’s report and proposed testimony goes more to weight, rather than compliance (or lack thereof) with Rule 143(g). The Court is not inclined to grant Respondent’s Motion in Limine at this time. Accordingly, the Court will deny, without prejudice, Respondent’s Motion in Limine to Exclude from Evidence the Report and Proposed Testimony….” Order, at p. 4. (Name omitted).

Once again, the multiple-author issue is raised. IRS claims Rule 143 is a variant on China’s one-child policy: each expert’s report is the child of one parent. Judge Speedy Weiler nixes that with Judge Halpern’s opinion in Carter; see my blogpost “Judge Holmes Got It Right,” 11/6/23.

A couple petitioner’s attacks (hi, Judge Holmes, happy new year) on IRS’ experts as professional witnesses goes to weight, not admissibility. Note the attacks on IRS’ usual experts is the coming thing. And one report is helpful, and to the extent unreliable or impermissible advocacy, that can come out in voir dire if IRS seeks to qualify the witness. Order, at p. 6.

Next, the buckshot approach. “Petitioner asserts that matters concerning congressional-inducement-motive should be decided in a partner-level proceeding; such matters should not be decided in this partnership-level proceeding. Petitioner makes this motion under FRE 401, 402, and 403; petitioner argues that evidence regarding congressional-inducement-motive is irrelevant to the instant case. In the alternative, if such evidence is not irrelevant, its probative value is substantially outweighed by a danger of confusing the issues, undue delay, or wasting time. Specifically, petitioner alleges such evidence will bury critical evidence, confuse the issues, unduly extend trial, and waste the time of both the Court and the parties. ” Order, at p. 7. Denied without prejudice, since Petition didn’t say exactly what evidence they were seeking to preclude. Object on the trial.

Petitioner wants a BoP shift because IRS’ appraiser gave numbers above those in the FPAA. That is a classic nonstarter, as Judge Speedy Weiler plays preponderance-of-the-evidence countergambit. Order, at p. 8.

No joy here. Maybe it’s better to try the case, guys.