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CAC3PARC 3 1 have that discussion. 2 The first question obviously is was the performance 3 deficient here. And that I think turns on the question of did 4 the Brune firm make a strategic judgment on that fateful 5 May 12, 2011 day, maybe even earlier during the voir dire 6 itself. And I'm not sure there is a great definition of 7 strategic judgment, but there is very good language in Justice 8 Stevens' dissent, but I don't think the majority disagreed with 9 it, that talks about a conscious choice between two 10 alternatives borne of deliberation not happenstance, 11 inattention or neglect. 12 The Second Circuit has told us that it is not a 13 strategic judgment when what is going on is oversight or 14 carelessness or ineptitude. 15 I like to think about this as strategic judgments are 16 situations where lawyers say, one of two courses could have 17 answered my client's interests. I choose A after some thought. 18 It may be that B is the wiser course. But we retry a lot of 19 cases if we second guess lawyers in that situation and 20 obviously the Supreme Court says we shouldn't. 21 I say in our papers that if what went on here was one 22 of two things. If the Brune firm in that plaza conversation 23 said the equivalent of let's sandbag the Court, let's go 24 forward. We know this information and we get a free bite at 25 the apple. It's hard to think that's not a strategic decision, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00010160