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More on Plagiarism in Legal Briefs

I have received a lot of good feedback on my article about the lawyer being cited for unethical plagiarism for failing to properly attribute his legal briefs. One particularly notable comment was from another lawyer that may have a claim to the toughest lawyer title, Chicago lawyer/boxer Steve Imparl. Steve writes:

“Copying seventeen pages of an article verbatim into a brief without attribution is wrong. Referring to the idea of free speech within a brief, attribution or not, cannot be wrong. Where we draw the line between these two extremes involves considerations or great import. Not the least of these considerations is unfettering ideas for all lawyers to find justice for their clients. Until that line is defined, however, wise lawyers would be well advised to avoid any ambiguity in one’s briefs – to avoid being hoisted thereon.”

You make a lot of interesting points in this blog entry. This last paragraph provides an especially important reminder of the underlying issues at stake.

Reading about our hapless colleague, I was struck by an irony in this case. In orders and opinions, judges routinely copy text from the briefs filed in a case, very often with no indication of quotation or attribution. Is that also plagiarism and unethical conduct?

Steve observations are good ones. Where do you stop along this rather slippery slope. “Is that also plagiarism and unethical conduct?” I guess the answer would be do you mean logically, or legally? Logically, under the rule of this case, a court copying excerpt of briefs without attribution would have to be unethical plagiarism. Even more so than a brief.

Legally? I think you would be hard-pressed to find a court willing to issue such a ruling.

The key here is that plagiarism, by definition, requires that you assert someone else’s ideas as your own. Does a brief do that? I never thought it did. A brief is merely a reiteration of the law and the facts. Opinion is to be avoided at all costs. It always seemed to me that briefs were just the opposite of plagiarism. Briefs involve crafting your ideas in the courts’ words.

Now an court opinion is quite a different animal. A court opinion is just that, and opinion. It is the court asserting its ideas about the case. It would seem to me that court opinions claim others ideas as the author’s own, or at least leave that impression. Briefs do anything but.

Personally, I think neither type of filing should be subject to plagiarism claims. If they do not constitute copyright infringement, there should not be an issue. Plagiarism is an academic question, not a legal one. Academic questions should be left to academics, and not lawyers, to draw the lines.

At the very least, if courts wish to crack down on the failure to exhaustively attribute every legal concept, they should start at the bench and work down. Otherwise they truly do risk being hoist by their own petard. But this is merely one man’s opinion.

Brett Trout

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