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Case 1:20-cv-00330-PAE Document 16166320 Filed 02/24/22 Page 64 of 117 A-5907
CAC3PARC 5
1 What's always been odd to me is when she gets to the
2 plaza, how quickly she abandons it. And whether it is because
3 she is exhausted at the end of a long trial, whether it's
4 because, as she said, she looked more at this report and she
5 thought it was more complicated, whether it was because her
6 seniors cowed her. But, as your Honor says, the discussion
7 there was superficial and never addressed the information that
8 she had accumulated over the last 12 hours. And she simply
9 goes along. And she goes along with her two seniors who don't
10 know of the Westlaw report, but say to themselves it can't be
11 her. There is no need to tell the judge. Let's go home, it's
12 been a long day, a long trial.
13 Now, we differed back at the time as to whether that
14 was a waiver or not. But there is no doubt that that is not a
15 judgment that a lawyer should have made in that situation.
16 Your Honor referred to it as a tragic misjudgment, and it was.
17 One of two things should have happened. There should
18 have been an investigation, or there should have been someone
19 saying, why me investigate? Let's just tell the Court and
20 we'll go from there. And neither of those things happened.
21 Instead, people went home, they spoke to their colleagues a day
22 or two later, and said, geez, she has the same name, but it
23 can't be her. And nobody said, well, let's do the easy thing
24 and let's tell the Court. As your Honor says, a few days
25 later, we substituted a new juror and nobody thinks to
SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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