Judge Copies Most of His Decision from a Party’s Briefs — Why Is That Wrong?

Cojocaru v. British Columbia Women’s Hospital & Health Center — decided yesterday by a 3-judge panel of the B.C. Court of Appeal, the highest court in British Columbia — reverses a trial judge’s decision because,

In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

Now some sources have characterized the trial judge’s sin as “plagiarism” (see, e.g., this Vancouver Sun article); and Prof. Bill Poser, at the excellent Language Log, accepts that characterization but wonders why plagiarism in a judge’s opinion should be 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.”

I think that the trial judge’s actions were improper, and that the appellate court was right to reverse it. But the impropriety mostly has to do with matter other than the ones that lead us to condemn plagiarism in, say, scholarly work.

What’s normally wrong about plagiarism is that the plagiarist wrongly gets credit for creative work (by deceiving the reader about the work’s true authorship), and wrongly denies the true author credit that the true author deserves. But this doesn’t really operate in most judicial opinions. Judges rarely get credit for creativity or originality in their work (with a few exceptions for unusually insightful and original opinions, which will almost never arise from simple copying of a party’s biased presentation of the issue). And lawyers rarely seek credit for such work in their briefs (again, with very few exceptions). They seek credit for winning, and if a judge likes their work so much that he copies it wholesale, they are likely to get what they want, and they can also use the judge’s copying to especially impress their clients.

Rather, the problem, as the B.C. Court of Appeal panel majority understood it, is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that. It’s of course possible, as Prof. Poser suggests, that a judge may well consider the matter thoroughly but think one party’s analysis is precise enough. But the verbatim copying gives reason to doubt that, especially since a party’s analysis — even when generally sound — will almost always be framed in the way that’s most favorable to that party, and will thus very rarely be the way that a neutral arbiter would characterize the matter. (This is also an issue in plagiarism by students, where verbatim copying suggests that the student didn’t fully confront the issue; but that’s only a part of the objection to academic plagiarism.)

Here’s the summary of the matter from the Court of Appeal, which struck me as quite apt:

On our analysis, the reasons for judgment do not meet the functional requirement of public accountability. They cannot satisfy the public that justice has been done, and would, if accepted, undermine support for the legitimacy of the justice system….

When one closely examines the trial judge’s published reasons, laid side-by-side with the respondents’ written submissions, one is left with the indelible impression that the trial judge could not have applied his own reasoning process to the case. This impression is most acute in that portion of the reasons that address liability….

Rather than exhibiting any sign that the trial judge grappled with the difficult issues confronting him, one is left with page after page (84) of wholesale, uncritical reproduction of the respondents’ written submissions….

Unlike [in an earlier case], the case at bar is not one in which the legal issues before the judge were so “clearly defined and argued by the parties that the purpose of giving reasons will be met if the judge simply adopts the submissions advanced by one of them” …. Rather, the decision of the trial judge turned on the credibility of witnesses and several contentious findings of fact where the evidence presented by each party at trial was in direct conflict. This conflict went unacknowledged by the trial judge ….

Moreover, since the trial judge failed entirely to deal with a cogent and uncontradicted defence argument on the issue of causation submitted by the appellants at trial, it cannot be said that the trial judge discharged his burden to inform the losing parties of the reason for their loss….

The Supreme Court expressed another reason for judges to articulate their reasoning: to help to ensure fair and accurate decision making, instantiating the rule of law and supporting the legitimacy of the judicial system. The Chief Justice said …:

In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law. As one judge has said: “Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper.” Finally, reasons are a fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis…. In all these ways, reasons instantiate the rule of law and support the legitimacy of the judicial system.

… The form of the reasons, substantially a recitation of the respondents’ submissions, is in itself “cogent evidence” displacing the presumption of judicial integrity, which encompasses impartiality. We have concluded that a reasonable and informed observer could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions….

I should acknowledge, of course, that there are situations in our judicial system where a judge does adapt the written work of others, with little or no change. Some judges may sign their names to the written work of staff attorneys or law clerks who work for the judges. Judges on courts that sit in panels of two or more — mostly appellate courts, though on rare occasions trial courts do the same — may also often sign their names to one judge’s opinion. In each situation, it’s possible that the judge’s adoption of the work of others means that the judge hasn’t discharged his duty to independently confront the matter. And many orders, including some relatively simple appeals, are decided with one-line “motion granted/denied” or “affirmed/reversed” results, which include no original writing by the judge.

And of course the reason for all this is that the judicial system tries to balance judicial engagement and efficiency. We could have more judicial engagement by, for instance, (1) requiring every judge on a multi-panel court to write his own opinion, and (2) requiring every judge to write his own detailed opinion in every case, (a) never resorting to drafting by law clerks or staff attorneys, (b) never incorporating the party’s submissions (even when they’re quire routine), and (c) never disposing of the case with a one-line order that lacks a supporting reasoned opinion. Yet we don’t do that, because maximum judicial engagement isn’t the only goal.

But at least in those situations I describe the judge is adopting the work of either a subordinate or a colleague, whose task is the same as the judge’s — to offer an impartial evaluation of the case. (The draft opinion will also often, though not always, be written after the judge’s views on the subjects are known to the drafter.) A judge adopting wholesale the work of a party is adopting the work of someone whose goal is very different from what the judge’s should be. And especially in situations where there are a good many complicated findings of fact or conclusions of law, that sort of wholesale adoption does run the risk that the result will reflect the party’s own self-interested advocacy rather than the judicial system’s impartial analysis.

This is of course a matter of degree, as the discussion above suggests, and requires a weighing of several different factors. But those have to do with the desire that judges offer impartial judgments that reflect their own thinking, and not with the worry about improper granting and denial of credit that is at the heart of much of the concern with academic “plagiarism.”