Plagiarism in Legal Briefs

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. Brett Bellmore says:

    No royalties, so they’re not losing any income when they’re plagiarized? So plagiarism becomes just the sincerest form of flattery, without any economic component?

    Is it illegal to plagiarize a brief? Another theory is that lawyers are trained to treat anything that’s legal as ok, so if plagiarizing a brief weren’t a crime, they might not see it as wrong.

  2. Agreed about the lack of royalties. Two additional thoughts:
    1. A legal brief is sort of a work for hire, although the client doesn’t really have a copyright claim on it. Once the brief is filed, though, and especially once the case is over, a lawyer might never use that brief for anything again. In a future case with similar issues, it’s in the client’s interest for the lawyer to do a new brief (in case the law has changed, and because the facts will be different). It’s also in the lawyer’s interest to do a new brief (and this may sound cynical) because billable hours.
    2. Academic papers don’t usually generate royalties, as far as I know, but professors care about plagiarism because those papers are how they build a professional reputation. It’s rare that anyone, other than law professors, would read a brief after a case is over. Lawyers tend to build their professional reputations in other ways. Again, as far as I know.

  3. Carissa says:

    Not sure how related this thought is, but judges often copy sentences or entire paragraphs from a party’s brief without attributing the argument to the attorney/brief.
    And attorneys often end up lifting entire sections from their own previous briefs to file in subsequent cases. (I saw this all the time from the local U.S. Attorney’s Office when I was clerking — the office appeared to have essentially boilerplate paragraphs for a number of criminal procedure issues that would appear in every case touching on those issues.)
    Neither of these practices seem consistent with a norm of anti-plagiarism. So perhaps it is not that there is no clear set of norms in this area, but that the norm of anti-plagiarism simply has not been adopted.

  4. Jack says:

    There is no point or utility in citing prior briefs. If the language comes from a case or a treatise, it will be cited because it is authoritative. If it comes from another brief (which may in turn come from another brief, ad infinitum) how does it help to cite it? What is gained? No one thinks briefs are utterly original to the drafters (who often are not even listed on the brief anyway! The partner takes credit, legitimately, because it reflects authority, not authorship!) In a system of precedent, it would make little sense for briefs generally to be unrelated to past efforts.

  5. JHP says:

    A suit in the Southern District of New York, White v. West Publishing, contends that the Westlaw opractice of taking briefs from the public file and placing them on line, without compensation to the lawyers, is a copyright violaion. (The lawyer who is the lead party in the suit, Ed white of Oklahoma City, registered a copyright for many of his briefs, including ones in a case I had against him.) Judge Rakoff issued a minute ruling last year that he was granting summary jugdment to the defendants, to be fully embodied in an opinion, but the opinion has yet to issue. The minute ruling also says that judgment will not enter until the opinion is issued.

    As for the realities of brief copying, self-plagerizing within firms is rife. Notwithstanding the commentators’ comments on billable hours, the economic realities of practice require building on the shoulders of others, rather than starting from scratch. Between firms, there is not so much copying of briefs, as looking at what others have said for ideas and citations. Indeed, on a difficult question that may have gone the other way in another jurisdiction, there is considerable value in examining the arguments made by the losing party and improving on them to overcome the reason for the loss.

    The real issue for plagerism is complaints. The hard working plaintiffs’ firms that invest time and energy into complex complaints feel aggrevied when lesser firms free ride and essentially copy their complaints to stake out their own turf in the area. I read that, at one point, some of the leadign securities litigation firms were registering copyrights in their complaints for this reason.

  6. Joe says:

    If a creative point comes from a law article, citing it seems reasonable. If the point comes from a brief, doofus move? Seems a bit weird, especially given some creative arguments made in amicus briefs particularly. I also would think certain lawyers, especially specialists paid good money for their time and arguments, might be concerned about some peon making what they do look all pedestrian. The issue of royalties was cited, but lots of things written that people are required to be cited in effect gives the author no real financial rewards.

  7. Blair Mitchell says:

    Lawyers, the ones I know anyway, treat the preparation of the brief as one of the tools in part of the contest, and not a stand alone product or being relevant to any broader context. To them, the brief’s value lies how it might contribute to a result, the litigation. It’s not all that different from how they view pleadings, which are also often “plagarized” work. Few have the inclination to look at the brief as an end in itself. In the result, folks who would be quick to take offence at unattributed copying from an article or paper, something meant for broader distribution, rarely even consider whether their written submissions in a file have been lifted. Briefs are trees. They overlook the forest.

  8. arthur says:

    Plagiarism from another lawyer’s brief is neither unethical nor illegal. Redoing work that does not have to be redone is unethical, at least when billing by the hour. When I come across a well-written brief directly on point , I have a duty to use as much of it as is appropriate, and to spend as little time rewriting as is reasonable. I still have a duty to check whether the other lawyer accurately summarized the cases cited, etc.

    (protip: When the opposing party relies heavily on a particular case, the first step in responding should be to pull up the brief of the losing party in that case. Whether or not it can be used directly, it can save many hours).

  9. Curmudgeonly Ex-Clerk says:

    One significant reason that lawyers do not care whether their briefs are plagiarized is that the signatories often have little or nothing to do with the writing. I work in products liability defense for a large-ish firm, and I have written many, many briefs that do not bear my name. While someone has reviewed or edited many of these to one degree or another, they seldom have done much actual research or writing. It would take a fair amount of chutzpah for them to take offense at someone else borrowing my words.

    I also wonder who would own any rights in professional legal writing. Assume for a moment that intellectual property rights inhere in legal briefing. Who owns them: the lead attorney on the pleading, everyone in the signature block collectively, or the firm? Does the nature of the firm affect this inquiry (partnership versus professional corporation or some other entity)? Does it matter whether the signatory or signatories are principals or mere employees of the entity in question?

  10. Jim Maloney says:

    Thanks to JHP for telling us about White v. West. I checked on PACER just now, and the awaited opinion has indeed still not come down, although the not-quite-final order was issued over 14 months ago, in February 2013. This means that plaintiffs’ ability to appeal is being delayed, but they cannot move their claim forward either. Whatever the merits, that seems procedurally unfair. I have downloaded the docket sheet and the order in question from PACER and mirrored them on my own webspace. Those interested can access same by clicking the link on my name on this post. – JMM

  11. Douglas Levene says:

    Note that in corporate practice, plagiarism is a virtue. No one creates a business contract from scratch. That would be a colossal waste of time and money. Business agreements are generally copied from precedents with changes as necessary or appropriate. Is drafting a brief on a topic that has already been litigated all that different?

  12. Certainly, a brief writer’s wholesale copying from a law review article is sanctionable for dishonesty or mispresentation toward the court. See, Iowa Supreme Court Attorney See Disciplinary Board v. Cannon, http://www.leagle.com/xmlResult.aspx?xmldoc=In%20IACO%2020101015214.xml&docbase=CSLWAR3-2007-CURR

    In one of my appeals, I circulated a draft brief as a courtesy to co-defendants’ counsel, only to have them do me the discourtesy of filing a brief that largely copied from mine. The harm seemed palpable in the lost opportunity to have multiple approaches, as well as in boring the judicial audience. I was not flattered or amused. See Douglas E. Abrams, Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice, 47 Wake Forest L. Rev. 921 (2012), at http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1464&context=facpubs

    Nathan Schachtman

  13. Mr. Schachtman:

    It seems to me you are conflating two different forms of borrowing. Magliocca’s post is about the “set of norms about copying from another attorney’s brief,” not about copying from cases, treatises, or scholarship with attribution. For the latter, there does seem to be a clearer set of norms. For the former, not so much. I have read Abrams article, but I am not sure that even he would go so far as to argue that copying from others’ briefs is plagiarism. Unless I have overlooked it, he says nothing explicit in this regard. My sense is that most legal professionals do not consider borrowing from others’ briefs to be plagiarism, and for good reasons. See Peter A. Joy & Kevin C. McMunigal, The Problems Of Plagiarism As An Ethics Offense, ABA Criminal Justice (2011) (available via Google).

  14. Plagiarism, they say, is the biggest form of flattery. And since there is no lose of income when they are plagiarized no one seems to mind, I guess.