The lawyers’ ideal is not having to try a case. Paradoxical as it sounds, winning fast is better than winning slow. Deft, economical, and fast wins clients’ hearts., Doing it isn’t easy, but even failing at a fast win can shorten the path to victory.

Two examples.

Amgen Inc. & Subsidiaries, Docket No. 16017- 21, filed 10/24/24, a patience-testing, long-running discovery joust, narrows the trial spectrum further with a failed Rule 91(f) deemed admitted ploy. Judge Christian N. {“Speedy”) Weiler discharges the OSC to admit, finding IRS’ expert shortchanged the Court by failing “to discuss the methodology he used to prepare the segmented financial statements. Additionally, the validity and reliability of Mr. [Expert]’s methodology is legitimately in dispute. Respondent has expressed his intention to call Mr. [Expert] as a fact witness, and we believe this presentation at trial is the best mechanism to resolve the ongoing disputes over the segmented financial statements.” Order, at pp. 2-3. Classic case of “sweat your witnesses before trial, and your adversary’s witnesses on the trial.” Does help if you know where the witness should be sweated.

Carl B. Barney, Docket No. 5310-22, filed 10/24/24, is back for the fourth (count ’em, fourth) time on the pretrial trail. Modifying, amending, and supplementing my previous comments, the Rules should allow omnibus motions in complex cases, so all these contentions can get sorted out once for all. This one-issue-per-motion Rule 54(b) approach is a timewaster in complex cases, with sophisticated counsel and judges. And discovery disputes should be handled by law secretaries (as in our NY State courts) or US Magistrates (as in USDCs), without tying up STJ and Judges. We might need fewer judges if they didn’t need to do busywork.

Carl counterpunched when his trusty advisers blew the opt-out from Section 453 installment treatment (didn’t get Com’r’s consent) by entering into a deal with his controlled Sub S Corps to cut the price of the for-profit colleges they sold his self-settled trust, which then sold them on to a genuine 501(c(3) giving Carl a big bargain-sale write-off. Carl cut the price by wiping out one promissory note and eviscerating the other, after IRS started auditing the deal.

Carl claims the notes are contingent payment debt obligations, hence reduction in purchase price and not cancellation of debt. IRS says not, because fixed interest rate. Carl says interest rate can vary if CPI-U fluctuates over a trigger, but IRS says it hasn’t for thirty (count ’em, thirty) years prior to execution of Notes, thus “so remote as to be negligible.” Carl says it has, and cites examples.

Judge Christian N. (“Speedy”) Weiler again finds more disputes. IRS says seller was insolvent, hence Section 108(e)(5)(B)(ii) precludes reduction in purchase price treatment. Judge Speedy Weiler says that’s a question of fact, and even if seller was solvent, IRS still argues that the reduction can’t be carried back to date of sale. Likewise, the terms of the purchase price reduction need to be established. And there remains the question of the FMV of the sold colleges: IRS claims the appraisal upon which Carl bases his bargain-sale charitable donation is excessive.

So the parties get a shopping list.