George A. Lovenguth - Page 10




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          defense is a permissible ground for letting one party to a                  
          pretrial stipulation out of his agreement.  Courts have                     
          identified numerous factors, and their importance is almost                 
          always dependent on the particular context.  One such factor is             
          whether both sides were represented by counsel when agreeing to             
          the stipulation.  See, e.g., Associated Beverages Co. v. P.                 
          Ballantine & Sons, 287 F.2d 261, 263 (5th Cir. 1961); Jenkins v.            
          Commissioner, T.C. Memo. 1988-326.  This makes sense--the                   
          participation of attorneys in drafting stipulations is more                 
          likely to result in a fair and balanced presentation of the                 
          facts, even as their participation in creating a trial record               
          presumably makes it more likely that relevant and material                  
          evidence will be admitted.                                                  
               Another factor is whether the party opposing a motion for              
          relief from stipulations can point to evidence that has been lost           
          or to arguments that might have been made but no longer can be.             
          Courts are thus especially unlikely to grant relief from                    
          stipulations when the request is made for the first time in a               
          posttrial brief, see La. Land & Exploration Co. v. Commissioner,            
          90 T.C. 630, 649 (1988), or on appeal, see United States v.                 
          3,788.16 Acres, 439 F.2d 291, 296 (8th Cir. 1971).                          
               And even apart from whether a party was represented during             
          the drafting of stipulations and whether prejudice would result             
          from granting relief is the question of whether the stipulations            







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