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obvious that Laney is intelligent, perceptive, cautious, and
self-protective to a fault. He generally refused to concede
anything he thought might be to his disadvantage, no matter how
clear the matter was. We are convinced that, if Laney understood
that the Department of Justice conceded his entitlement to a
$16.3 million deduction in exchange for his dropping his Court of
Claims suit, then (1) Laney would not have proceeded to drop that
suit unless he had the Department of Justice’s concessions in
writing, (2) Laney would have preserved this writing, and (3)
Laney would have produced this writing for the record in the
instant case. Petitioners did not present any such written
settlement agreement or any evidence that there ever was a
written settlement agreement. From the foregoing we infer that
(1) there was not a written settlement agreement, and (2) there
was no oral concession by the Department of Justice that Laney
would be entitled to the claimed deduction in consideration for
dropping his Court of Claims suit.
On the first day of the trial petitioners offered into
evidence an affidavit by Henry. Laney explained that the
affidavit was offered as an expert witness report. The Court
indicated doubt that the affidavit would so qualify but noted
that ordinarily an expert witness report “is admissible if it is
identified [and adopted] by the expert at the trial and the
expert is made available for cross examination.” The Court
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