Free Motion for Reconsideration - District Court of Federal Claims - federal

Case 1:95-cv-00524-GWM

Document 397

Filed 10/03/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

HOMER H. HOLLAND, STEVEN BANGERT (in his capacity as co-executor of the estate of HOWARD R. ROSS), and FIRST BANK Plaintiff, v. UNITED STATES, Defendant.

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Case No. 95-524C (Judge G. Miller)

PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S SEPTEMBER 20, 2007 ORDER CONCERNING ALLOCATION OF TRIAL TIME Plaintiffs' hereby respectfully request that the Court reconsider its Order of September 20, 2007, allocating to Defendant 50% more time than Plaintiffs to conduct "all direct examination, cross-examination, and rebuttal testimony" at trial. See Order of September 20, 2007 at 2 (allocating 60 hours of total trial time to Plaintiffs and 90 hours to Defendant). Given the parties' extensive and relevant joint stipulations of fact, and the streamlined character of Plaintiffs' intended trial presentation, Plaintiffs maintain their position that the entire trial should be completed in fewer than 100 total hours. Nevertheless, should the Court wish to allocate an estimated 150 hours for trial, Plaintiffs respectfully request that the Court fairly divide the total available trial time between each side. It is simply not equitable to allocate to Defendant 30 more hours -- or by Defendant's calculation of 6 testimony hours per day, an entire week longer -- than Plaintiffs to present their case. Plaintiffs have the burden of proof with respect to their claims for damages, and should not

Case 1:95-cv-00524-GWM

Document 397

Filed 10/03/2007

Page 2 of 4

be denied at least as much time to prove its case as the government is granted in defense. Even were it true, as Defendant argues, that its intended trial presentation is inherently more cumbersome than Plaintiffs' and requires the presentation of dozens of witnesses, Plaintiffs will need to cross-examine those witnesses, and should not be required to compromise the presentation of their case-in-chief to do so. Should Defendant use the entire 90 hours of time the Court has currently allocated to present its case, the 60 hours allocated to Plaintiffs would almost certainly fall far short of the amount of time Plaintiffs would need in that situation to present their case-in-chief, cross-examine Defendant's witnesses, and present rebuttal testimony. In their Statement Regarding Allocation of Trial Time filed on September 11, 2007, Plaintiffs estimated that their direct examination of the seven witnesses Plaintiffs expect to call would take 26 hours. Plaintiffs further estimated that the testimony of the ten witnesses they may call would take 18 hours. Those expectations have not changed. But Plaintiffs' request for 50 hours of total trial time was premised entirely on the expectation that Defendant would be granted the same 50 hours. In that scenario, Plaintiffs would have more than enough time to conduct their expected direct examinations, present rebuttal testimony, and cross-examine Defendant's witnesses. Given the Court's current time allocation, that is not the case. Given the parties' extensive joint stipulations, and the further fact stipulations invited by the Court's September 28, 2007 Order, Plaintiffs request that the Court reconsider its decision to allocate 150 hours to the trial of this case. Should the Court remain committed to scheduling 150 hours of trial time, Plaintiffs respectfully request that the Court revise its current allocation to grant each side 75 hours of trial time, allowing Defendant almost exactly the same amount of time it requested, see Defendant's Notice of Proposed Allocation of Time at Trial, dated Sept. 11, 2007 at 5, and granting Plaintiffs an equal and adequate opportunity to prove their case.

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Case 1:95-cv-00524-GWM

Document 397

Filed 10/03/2007

Page 3 of 4

Respectfully Submitted, /s/ David B. Bergman David B. Bergman ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (tel.) (202) 942-5999 (fax) Counsel for plaintiffs Holland and Ross and First Bank.

Of Counsel: Melvin C. Garbow Howard N. Cayne Michael A. Johnson Joshua P. Wilson ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Co-counsel for First Bank: Donald J. Gunn, Jr., Esq. Sharon R. Wice, Esq. Gunn and Gunn First Bank Building, Creve Coeur 11901 Olive Blvd., Suite 312 P.O. Box 419002 St. Louis, Missouri 63141 (314) 432-4550 (tel.) (314) 432-4489 (fax) Dated: October 3, 2007

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Case 1:95-cv-00524-GWM

Document 397

Filed 10/03/2007

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 3rd day of October 2007, I submitted the foregoing Plaintiffs' Motion for Reconsideration of the Court's September 20, 2007 Order Concerning the Allocation of Trial Time to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

/s/ Joshua P. Wilson

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