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.