concapk, this is a case of close to slam-dunk, Lawyering 101 legal malpractice. The time for Amarin's counsel to communicate was after the submission of Defendants' Proposed Findings of Fact (when the Cropped Table first appeared), but prior to Judge Du's decision.
Amarin's attorneys had an absolute irrefutable duty of diligence, requiring them to review Defendants' Proposed Findings of Fact for accuracy and then alert the Court to any glaring issues, such as this one. The following letter should have been written:
Dear Judge Du:
It is with much shock and dismay, but with great urgency, that we write to the Court for purposes of alerting the Court to a grievous misrepresentation in Defendants' Proposed Findings of Fact. Specifically on page #, para. #, the Kurabayashi Table has been cropped.
This is extremely material to the Court's upcoming verdict. [Insert the explanation from EPADI 's briefs explaining how the cropping of the Table changes the entire meaning of Kurabayashi].
We make no comment as to whether the cropping of the Table was erroneous or intentional. We are not writing to impugn the integrity of our adversaries. However, we are writing for purposes of bringing this matter to the Court's attention, and preventing the Court from reaching an erroneous verdict based upon mistaken material information. We thank the Court for its consideration.
Respectfully submitted,
Attorney from Covington
This was never done, and we all know what transpired. This disaster could have potentially been averted through the exercise of reasonable diligence by those duty bound to do so. Amarin's lawyers did not diffuse the bomb. Thus actionable legal malpractice has been committed, and it is not subject to debate.
