Is "plagiarism" in a judicial decision wrong?

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The Court of Appeal for British Columbia handed down a very unusual decision today that raises an interesting linguistic issue. The underlying case, Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, was a medical negligence suit by the parents of a brain-damaged baby against the hospital at which it was born. At trial before the Supreme Court of British Columbia, Justice Joel Groves ruled for the plaintiffs and awarded them $5 million in damages.

Most of Justice Groves' decision was copied from the submissions of the plaintiff's attorney, Paul McGivern. 321 out of a total of 368 paragraphs were copied nearly word-for-word from the submissions, seven were a mixture, and 40 were in his own words. On appeal, the Court held 2-1 that the trial judge's copying gave rise to the apprehension that he had not seriously considered the issues and overturned the decision, remanding it for a new trial.

I don't have a definite opinion on this, but my inclination is that the court is wrong. Judges, unlike authors of fiction, are not paid to be original. If one party states the facts or the law clearly and accurately, by all means the court should make use of the work that party's attorneys have already done rather than spending time rephrasing it. My understanding is that this is actually a common practice and that indeed it is not uncommon for the parties to submit draft reasons for decision that the judge may adapt if he or she rules their way. An appellate court is still free to consider whether the decision is logical, consonant with the facts and the law, etc. but adopting the wording of one party does not seem to me to be a good sign that the judge has not fairly considered the case.

P.S. For those not familiar with it, the names of the courts in British Columbia may be confusing. There are three levels. The Provincial Court is the lowest level. It is the court of first instance for lesser criminal cases, traffic violations, small claims, and family matters. The Supreme Court is the middle level. It hears appeals from the Provincial Court and from arbitrations and is also the court of first instance for more serious criminal cases and major civil cases. The Court of Appeal is the highest court and hears only appeals from lower courts and references from government.

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20 Comments »

  1. Thomas + said,

    April 15, 2011 @ 12:26 am

    This isn't a linguistic issue. It is one of judicial ethics.

  2. John Cowan said,

    April 15, 2011 @ 12:33 am

    Similar naming conventions apply in New York State, where the Supreme Court is the ordinary trial court in civil cases and felonies (Criminal Court handles misdemeanors), the Supreme Court Appellate Division handles intermediate appeals, and the Court of Appeals is the highest court.

    In Massachusetts the General Court is the state legislature, which once had judicial functions as well; the highest court is the Supreme Judicial Court, which sounds redundant but historically is not.

    The District of Columbia is not a state, but it has two court systems: the Superior Court of the District of Columbia and its appellate court, the District of Columbia Court of Appeals, which administer justice based on the local law of the District as established by Congress or the elected Council of the District of Columbia, and the U.S. District Court for D.C. and the U.S. Court of Appeals for D.C., which are federal courts analogous to those which sit in the states. The first group are actually part of the federal executive branch. Appeals from both go to the Supreme Court of the United States.

  3. Stephen Nicholson said,

    April 15, 2011 @ 12:50 am

    I'm a third year law student, and I've often been told that the gold standard of brief writing is when the judge takes sections of the brief and uses it in the opinion.

    Ironic that a court in Canada would hold the opposite.

  4. Lance said,

    April 15, 2011 @ 4:25 am

    Reading through the decision–and I am certainly not a lawyer–it's my impression that taking "sections of the brief" is as good a thing for a Canadian lawyer as an American one; but when the judge's opinion is 85% verbatim from the brief, there's evidence that something has Gone Wrong.

    And while it's true that "[i]f one party states the facts or the law clearly and accurately, by all means the court should make use of the work", the decision here indicates that that's not what happened. Rather, they say of the judge's original contributions that "most of those paragraphs (20) address uncontroversial facts, or are introductory in nature, or simply summarize the respondents’ submissions. No independent reasoning was required to be applied in those paragraphs and none is evident"–that is, what the judge wrote was the facts of the law, and what the lawyer wrote was judgment on the issues. By copying the plaintiff's brief, the judge ignored "the credibility of witnesses and several contentious findings of fact where the evidence presented by each party at trial was in direct conflict".

    So this apparently isn't a case where a judge copied the statements of fact from a brief (which even the majority opinion seems to acknowledge is acceptable), but where rather he seems to have copied the brief rather than exercising the necessary judgment to decide the case before him.

  5. Jon Weinberg said,

    April 15, 2011 @ 6:22 am

    Judge Posner has labelled judicial plagiarism an "oxymoron," but at least one American court has taken an approach similar to the recent Canadian decision. In Bright v. Westmoreland County, 380 F.3d 729 (3d Cir. 2004), the federal Court of Appeals for the Third Circuit wrote:

    Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own [verbatim, in its entirety], the court vitiates the vital purposes served by judicial opinions.

  6. Jonathan Mitchell said,

    April 15, 2011 @ 7:18 am

    I'm a practising advocate in Scotland and in 2000 I had an appeal on this point in our supreme court, the Court of Session (T v T, 2000 SC 337, available at http://www.bailii.org/scot/cases/ScotCS/2000/283.html). The Sheriff (first instance judge) had been given proposed sets of findings by both parties, and had simply cut and pasted one party's entire draft into his judgment without even acknowledging he had done so. The court said this:
    "[62] We were told that the Sheriff's Findings in Fact were entirely based on a draft submitted by counsel for the defender. In effect the Sheriff had adopted that draft. It will often, of course, be helpful for counsel to place before a sheriff a draft of the findings which they are inviting the court to make. And indeed junior counsel for the pursuer in this case put in a draft containing the findings which she wished the Sheriff to make. It has long been the practice, I understand, for parties to submit such drafts. Nowadays, of course, word processing makes their preparation much simpler than it would have been in the past. I certainly would not wish in any way to discourage parties from preparing them since the advantages to sheriffs of having such drafts on which to work are obvious. None the less, as with the use of any draft prepared by someone else, there are certain possible disadvantages which are, perhaps, less obvious but are still of some importance. Sheriffs should simply be alert to them. In particular there is a risk that a sheriff may adopt the draft put forward by the party in whose favour he decides, without working through the detail of the findings in the draft with the same care that he would use if he were formulating the findings himself. Another danger is that the sheriff may not ever fully articulate, even to himself, the reasons why he makes the crucial findings in fact."

    In this country at least, it's not uncommon for the parties to submit rival draft sets of findings of fact, but it certainly is very uncommon (both before and since T v T) for a judge to adopt more than passages in them, and even this is I think normally expressly acknowledged. I have to say I agree with the views in Cojocaru and also with Lance and the quotation from Bright v Westmoreland above. It's very tempting for a judge with a busy diary to cut corners by adopting one party's submissions in their entirety. But in reality there are few cases, certainly very very few complex cases, where this does justice to the nuances; it is far more likely to be an indication that the judge has simply not applied his or her mind to the arguments.

  7. Mr Fnortner said,

    April 15, 2011 @ 8:50 am

    I am sure that it is common practice, as my own attorney has done, to prepare orders for the Court, and have the judge sign them as issued from the bench. But these have been mere administrative matters such as appointments, discharges and so forth. In the instance above, the plaintiff's attorney is essential clerking for the judge. Or vice versa, the judge is using one party's counsel as his clerk. There's something fundamentally misguided here, not unlike ex parte communications.

  8. Nancy Jane Moore said,

    April 15, 2011 @ 9:33 am

    It's not the copying per se that's the problem here — all these documents are public records, not covered by copyright, and given the workload of most judges, copying great hunks of material is a useful time-saving device. The problem is that including so much material from one side without providing an explanation of why the other side's arguments aren't compelling makes it easy for the appeals court to assume that the judge didn't consider the defendants' arguments. It could be that the defendants' arguments are too weak to be worth bothering with, but it's better to say so directly and provide some details as to why. Saying something like "the defendants are misguided when they argue x, y, and z, as the plaintiffs' so ably point out here" and then quoting great chunks of a brief or pleading would have improved things.

    BTW, while John Cowan is correct in his explanation of the naming conventions of courts in the US — which vary widely among the states — his explanation of the D.C. courts might leave open some new confusion. Like D.C., all U.S. states have both a state court system and federal courts set up in districts for that state.

    And there is no automatic appeal from the D.C. Court of Appeals (as opposed to the federal U.S. Court of Appeals for the D.C. Circuit) to the U.S. Supreme Court. As is the case with any challenge to a state court opinion, the U.S. Supreme Court only has jurisdiction if there is a federal question involved.

    The legal issues in the U.S. having to do with the distinctions between federal and state law and legal systems are many and complex, and probably highly confusing to anyone who isn't a U.S. lawyer. (Actually, sometimes they're pretty confusing to lawyers, too — there's a huge body of law on the subject.)

  9. Dan T. said,

    April 15, 2011 @ 10:34 am

    Domain name dispute decisions under the UDRP (a quasi-judicial system run by private entities rather than government courts) tend to have lots of copy-and-pasting, often raising serious questions of whether the panelists actually paid any attention to the facts of the case. Not only do they paste in lots of raw assertions by the parties to the cases, but they often use past cases of a vaguely similar nature as their template, sometimes embarrassingly resulting in inapplicable facts from an earlier case finding their way into a new decision.

  10. Jon Weinberg said,

    April 15, 2011 @ 12:04 pm

    The UDRP problem, as Dan T. suggests, is a little different from the one we've been discussing. It's not so much one of panelists cutting and pasting submissions from the parties, as it is one of panelists (specifically those from the sausage factory known as the National Arbitration Forum) writing their entire "opinions" by quickly cutting and pasting language from prior decisions. GIGO, unfortunately.

  11. Magdalen said,

    April 15, 2011 @ 12:52 pm

    My sense is that this is a straightforward reversal or remand to the lower court for further action.

    In some cases, courts will have an idea of the result they want and then ask the question, "How do we get there?" The lower court in Canada may have decided to find in favor of the plaintiff and the judge (or more likely, the judge's clerk) figured the quickest way was to copy over the plaintiff's brief. As noted, this is not infringement of copyright as the legal briefs cannot be copyrighted.

    And it may — or may not — be laziness on the part of the court. I don't believe it can be laziness per se, meaning that every instance of using verbatim the reasoning of one side over the other without further explication is laziness.

    Further, the appellate court may have done what courts do: figured out which side should win and then decided on the easiest way to get that result. Thus, even if the lower court failed to consider the merits of the case adequately, if the appellate court didn't want the plaintiff to prevail, reversing the case on the basis of the judicial conduct of the lower court could be just as lazy.

    Without more information, I'd guess the right action would be to remand the case to the lower court with instructions to provide the litigants and the appellate court with more of the lower court's own reasoning for its decision.

  12. Bruce said,

    April 15, 2011 @ 3:16 pm

    As pointed out in the ruling for the majority, it's a numbers game.

    Of 368 paragraphs in the 105 page ruling, at most 47 are his own, and none address the issues most in controversy.

  13. PeterW said,

    April 15, 2011 @ 6:31 pm

    In my practice, I was once questioned pretty sharply by members of my state's supreme court [which is the highest appellate court in my state] based on a similar issue – the substantial adoption of findings of fact and conclusions of law by the trial court.

    Although the court upheld the decision of the trial court, they did express concern over the trial court's adoption of certain findings of fact because they want to be sure that the findings were really the trial court's findings. (Factual findings are reviewed with a great deal of deference on appeal, which is why appellate courts can be particularly sensitive on this issue; conclusions of law are reviewed de novo).

    It is a difficult issue, though – after the 3 day hearing, I spent a week writing the 50 page FF&CL; I assume my opponent spent about the same amount of time on his 60 page submission. Trial courts tend to not have that much time; further, as this was a criminal post-conviction proceeding (in essence, the third or fourth level of appeal in a criminal case), the findings of fact were essentially binary and the evidence supporting the facts was also pretty simple for each particular point.

    [As an example, one issue raised by the defendant was whether his right to a fair trial was interfered with because the jury may have known that he was wearing a "stun belt" under his clothing. 5 jurors testified, and they all testified that they didn't know he was wearing a stun belt under his clothing. The court adopted my findings of fact on this issue verbatim, which I don't see as problematic]

    In my case, the trial court probably adopted 3/4 of my FF&CL verbatim or with very minor changes. However, the court's order was not simply the FF&CL, but contained additional material – and when the court departed from the FF&CL, he did so in a fairly comprehensive way…which was apparently enough to convince the supreme court that the FF&CL actually expressed his findings. Although they still would have preferred that he paraphrase everything…

  14. John Cowan said,

    April 15, 2011 @ 7:44 pm

    Nancy Jane Moore: Quite so; but I think that since 1998 there has been no appeal as of right to the Supreme Court in any case, federal or state (as distinct from certiorari on the one hand, and the very rare original jurisdiction on the other). If there are such appeals, they must also be very rare.

  15. Ari said,

    April 15, 2011 @ 11:23 pm

    Nancy Jane Moore says: "It's not the copying per se that's the problem here — all these documents are public records, not covered by copyright, and given the workload of most judges, copying great hunks of material is a useful time-saving device."

    Where do you get the notion that because something is a "public record," it is not covered by copyright? Briefs of any complexity are substantially original, creative works of authorship, and there's no reason they would not be presumptively protected by copyright. The fact that they become public records when filed doesn't change this: If I have written a song, and sue somebody for copying my song, I will have to file a copy of the song with the court to prove my case, making the song part of the "public record" that consists of the filings in the matter. This "public filing" of my song does not divest it of copyright protection. In fact, virtually every document filed with the US copyright office is a "public document" by virtue of having been filed there; obviously, everyone who files a copy of their work with the copyright office in order to fulfill the deposit requirement doesn't thereby waive the very copyright protection they sought to secure by making their filing.

    Whether it might be "fair use" for judges to copy, verbatim, portions of briefs DESPITE THE FACT THAT THE BRIEFS ARE PROTECTED BY COPYRIGHT is a separate question. But there's no reason, at least in the US (and I realize this action arose in Canada) to assume that briefs are not protected by copyright the moment they are authored, like all other works of authorship.

    To put it another way: If I wrote a fantastic brief (actually, it happens all the time), I would fully expect that if someone who is writing a book about "how to write fantastic briefs" wanted to include my brief in their book, and charge money for their book, they'd need to obtain a license from me before doing so.

  16. Doug said,

    April 16, 2011 @ 8:12 am

    Ari:

    Thanks for the information on legal briefs and copyright.
    There's some discussion of the issue here:

    http://www.techdirt.com/articles/20090726/1536245664.shtml

    Similarly, I was surprised to read some time ago that some US states claim their laws are covered by copyright (so you can't legally scan them and post them online, for example). To me (a naive non-lawyer) that seemed absurd and even sinister. There's an item about that here:

    http://boingboing.net/2008/09/03/begging-states-to-tr.html

  17. David Fried said,

    April 16, 2011 @ 11:35 pm

    As a working lawyer, the one contribution I can make to this discussion is to point out that proposed findings of fact are ideally a series of simple, neutral statements, which each explicitly reference every bit of supporting evidence to be found in the transcript by page and line number. Once the judge has determined that these citations are reliable and accurate (and not cleverly tendentious) by reviewing a reasonably large sample, there is no reason that I can see why he should not reproduce the proposed findings verbatim. The standard of review is whether the judge's findings of fact are supported by substantial evidence, and they may be, even if there is substantial evidence on the other side.

    I have only once had the experience of a trial judge adopting my brief verbatim as his opinion on summary judgment, and I took it as a high compliment. "Summary judgment" means that there was no trial, because the judge agreed with the moving party (in this case me) that there were no material disputes of fact to be submitted to the jury, and the issue to be decided was one of the application of law to facts only. Here again there was a good reason to adopt my brief verbatim. My argument, as is usual, was a statement of perhaps five separate and independent grounds why my client should prevail. The judge who wishes to render a decision that is unlikely to be reversed on appeal will likewise base it on as many independent grounds as possible. But this is a lot of work, and if the judge finds the arguments ready to hand, why should he write them over? Again the question is whether the judge finds that he can trust the thoroughness of the research and the integrity of the arguments.

    There are so many specious grounds of appeal that I should be sorry to see this one become common.

  18. KeithB said,

    April 18, 2011 @ 2:56 pm

    There were similiar allegations about Judge Jones' ruling in the Dover case (where Intelligent Design was deigned to be creationism.) But since the decision was not appealed, nothing official ever came of it.

    Here is a typical link:
    http://pandasthumb.org/archives/2010/11/briefs-are-for.html

    (Which indicates that the supreme court engages in this "plagiarism", too!)

  19. Rothewell said,

    June 14, 2011 @ 11:07 am

    It's so ironic, because this particular judge is a very just and thoughtful judge, and this particular decision will result in so much injustice for the child who was the subject of this lawsuit. One has to wonder to what degree this judgment by the BC Court of Appeal was politically motivated.

    Here is an excerpt which expresses the sentiments of many who are familiar with this particular judge:

    "Mr. Justice Joel Groves is a respected and well-liked member of Vancouver’s British Columbia Supreme Court. He is unceasingly polite (and some judges are not), but more importantly he writes well-reasoned and timely judgments, even though they have not all been supportive of my clients’ positions. ..

    As young lawyers, we are taught (even by judges) to prepare written argument in such a way that judges will adopt our written submissions in their Reasons for Judgement. This is considered the goal of effective written advocacy.

    To harshly condemn a fine judge for doing what judges often do, is a disgrace. The Appeal Judges suggest Justice Groves ought to have footnoted the excerpts indicating they were taken from counsel’s written submissions.

    I have never seen a Judge attribute paragraphs of his judgment to the lawyers that appeared before him.

    The Appeal Court leaned heavily on the fact that a large part of Justice Groves’ Reasons came from counsel’s written argument. It appears if judges “crib” a few portions, that’s alright, but Judge Groves apparently crossed some line, only known to the Court of Appeal.

    Thankfully, one of the three Appeal Justices refused to impugn Judge Groves’ integrity and recognized that to do so on these facts would call into disrepute our very administration of justice.

    Of course, no judge will speak out to defend Justice Groves, so lawyers must.

    Lawdiva aka Georgialee Lang"

    =====

    I have to agree, wholeheartedly, with Ms. Lang.

  20. Flipinn_Burgers said,

    February 2, 2012 @ 1:36 am

    What if the presiding judge plagiarized, not the plaintiff's attorney, but an attorney outside of the case who wrote an article in the Yale Law Review and another book author? This is an ongoing case in my country that desperately needs some "guiding light:"

    Impeach bid vs Del Castillo Revived
    http://ph.news.yahoo.com/impeach-bid-vs-del-castillo-revived-160000792.html

    In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. Del Castillo
    http://www.lawphil.net/judjuris/juri2011/feb2011/am_10-7-17-sc_2011.html

    Elven lawyers (North Americans), could you please help this hobbit non-lawyer (Asian)? Any thoughts on this are appreciated.

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