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Case deel Redeieaeeaaiay Var), uae ate 117 oan u sb wwe Mm hh Mh Ree PRP Bee eee Mk WI NMP OoOw oA aA nM BW NH OW CAC3PARC have that discussion. The first question obviously is was the performance deficient here. And that I think turns on the question of did the Brune firm make a strategic judgment on that fateful May 12, 2011 day, maybe even earlier during the voir dire itself. And I'm not sure there is a great definition of strategic judgment, but there is very good language in Justice Stevens' dissent, but T don't think the majority disagreed with it, that talks about a conscious choice between two alternatives borne of deliberation not happenstance, inattention or neglect. The Second Circuit has told us that it is not a strategic judgment when what is going on is oversight or carelessness or ineptitude. I like to think about this as strategic judgments are situations where lawyers say, one of two courses could have answered my client's interests. I choose A after some thought. It may be that B is the wiser course. But we'd retry a lot of cases if we second guess lawyers in that situation and obviously the Supreme Court says we shouldn't. I say in our papers that if what went on here was one ef two things. If the Brune firm in that plaza conversation Said the equivalent of let's sandbag the Court, let's goa forward. We know this information and we get a free bite at the apple. It's hard to think that's not a strategic decision, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009481