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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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