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November|December 2003
Count Me Out, Coach By Bruce Barcott
PCU By Sasha Polakow-Suransky
cases & controversies
The Prudent Jurist By Charles Geyh

The Prudent Jurist

After an appellate court in Florida threw out a $145 billion judgment against Big Tobacco in May, lawyers for the losing side accused the court of plagiarism, asserting that 59 pages of the 68-page opinion were an "almost verbatim replication of tobacco's appellate briefs, without a single attribution." To what extent is it appropriate for judges to "borrow" language from one side's brief?

By Charles Geyh

WHEN A JUDGE COPIES A PARTY'S BRIEF AND CALLS IT HIS "OPINION," something smells a little funny. As with any unwelcome odor wafting its way through the house, however, locating its point of origin can be tricky. Is the source of the problem a violation of law? A breach of ethics? Something else?

The plaintiffs who lost the appeal charge that Judge David Gersten, who wrote the opinion (joined by two other judges), plagiarized the defendants' brief so completely as to violate the law and, more specifically, the plaintiffs' constitutional right to due process.

The plaintiffs may be overstating Gersten's "plagiarism." A number of arguments from the defendants' brief do appear in the court's opinion without attribution and with only slight modification. For example, the brief contends that "Phase II-A showed conclusively that individualized issues of liability, affirmative defenses, and damages vastly outweighed any 'common issues' in this case," while the opinion states that "Phase 2 of the trial conclusively established that individualized issues of liability, affirmative defenses, and damages outweighed any 'common issues' in this case." Still, the opinion and brief are different enough in language and structure that it's unfair to call them clones. But what if they were?

As a matter of law, a judge who—without attribution—simply takes the defendants' brief and substitutes the phrase "we conclude" for "we argue" might seem to have snuggled up to the defendants in ways that call into question his impartiality and the fundamental fairness of the process. But if the judge gives both parties a fair hearing and listens to their arguments without bias and with an open mind, he has maintained his impartiality in the eyes of the law. That he finds one party's arguments persuasive enough to call them his own would hardly deprive the other party of "due process," unless we elevate judicial originality to the status of a constitutional responsibility.

As to ethics, the Model Code of Judicial Conduct provides that "a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Assuming the judge commits no copyright infringements (for reasons I won't digress to explain), he has complied with the law. But has he nevertheless undermined the public's confidence in the judiciary?

Alan Dershowitz suggests that he has. "If a student ever did what this judge did, he'd be tossed out on his rear end," Dershowitz said in the ABA JournalE-Report, because "we teach our students as a matter of ethics that when you borrow, you attribute." True, but irrelevant. Law students are expected to do their own research and develop their own ideas and arguments. They behave unethically when they create the misleading impression that someone else's work is their own.

In an adversarial system of justice, however, judges are expected to crib from the arguments, ideas, and research of the adversaries. They mislead no one into thinking they've done otherwise even if they don't festoon their opinions with citations to the briefs. The point is for judges to get it right, not for them to get there on their own intellectual steam. In an age of crowded dockets and overworked courts, lawyers routinely draft proposed orders, findings of fact, conclusions of law, and briefs on behalf of their clients in the hopes that judges will borrow from them freely. In the absence of a clear proscription against this longstanding practice, it is unreasonable to suggest that thousands of judges spanning generations have committed ethical transgressions by failing to indicate that some of the orders, findings, and conclusions they issued were drafted by a party's lawyer.

That still leaves a question of public policy. As taxpayers, we have aright to expect judges to do the jobs we pay them to do. We pay appellate judges to write opinions that tell us what the law is, and we typically provide them with law clerks to assist in that process. It's one thing for a trial judge to issue a party-drafted order that binds the parties alone. It's quite another for an appellate judge to relabel a party's brief an opinion of the court that may serve as precedent controlling future decisions. Even if a judge believes that a brief offers a perfect expression of the law, copying it creates the perception that the jurist is sloppy, lazy, or intellectually moribund. That perception may be unfair: Many overworked and understaffed judges cannibalize briefs to keep up with their caseload. But the perception will remain, to the detriment of the public's confidence in the judicial system.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

Charles Geyh is a professor at Indiana University School of Law at Bloomington. He is serving on a task force to review the American Bar Association's Model Code of Judicial Conduct.

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