Tuesday, November 13, 2012

Stranger than Fiction: Judicial "Plagiarism"

There's been an interesting story I've been following in the media, the most recent of which is today in the National Post:  Case Headed to Supreme Court After Judge Plagiarizes Ruling in Multi-Million Dollar Compensation Trial.

The B.C. case involves a medical malpractice action.  At the end of a 30-day trial, counsel made written closing submissions...and Justice Groves reproduced very large portions of the plaintiff's closing submissions in his own decision, without identifying them as such. It was a 105-page decision, consisting of 368 paragraphs, of which the Court of Appeal said 321 paragraphs were copied "almost word-for-word" from the plaintiff's submissions "(with inconsequential changes, such as replacing phrases like 'it is submitted' with phrases like 'I have concluded')."

The majority of the Court of Appeal concluded that an informed observer "could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions", and ordered a new trial.  It is now going to the SCC, as the headline above suggests.

Let's start off by being clear on one thing:  "Plagiarism" is the wrong word on all sorts of different levels.  Legal submissions are not in the nature of intellectual property, and I'll bet that the plaintiff's lawyer was thrilled that the trial judge so thoroughly accepted his submissions.  A courtroom is not the Globe & Mail, and a judicial decision is not an op-ed column.  For propositions of law in particular, original content is not the norm, and attribution is frequently foregone for matters of trite law.

The journalists looking at this story are understandably appalled by the lack of attribution - in their world, that's a cardinal sin.  In legal reasons, though...less so.

No, the problem here is simple:  When the judge did a massive cut-and-paste job, it raises the question as to whether or not he seriously thought about each of the myriad factual and legal questions in doing so.  This was a shortcut, so the question is how much of a shortcut he took.

The importance of attribution, in judicial reasons, isn't to give credit where it's due; it's to give the appropriate context to the text itself.  A judge doesn't need to come up with his own distinct analysis, of course.  It is enough - and this is quite common in judicial writing - for the judge to say "The plaintiff argues x, and the defendant argues y [setting out the arguments in some detail], and I find the plaintiff's submission to be more persuasive."  Showing an appreciation for the competing positions is enough.

But it isn't unusual for segments of argument to be integrated verbatim into a decision.  It usually illustrates that the judge found those particular arguments to be persuasive.  That's fine.  I've had my submissions integrated verbatim into judicial or quasi-judicial decisions before.  It's a huge compliment to my advocacy skills, not only that I persuaded them, but that they couldn't top my choice of words for explaining the argument.

Ultimately, I think the controversy here is understandable:  The scale of the reproduction should be frowned upon, absolutely, but I don't take the view that this alone is enough to reverse the decision and order a new trial, and my reason is this:  If it's really a problem, there are other ways of getting at it.

Where a judge makes findings of fact, this is entitled to deference.  That means that, if a judge isn't bothering to assess credibility or independently consider what facts he believes, that's a huge problem, because those are hard to get in at on appeal.  However, if he doesn't adequately consider the defendant's evidence, and accepts the plaintiff's evidence without mentioning the competing version of facts, and without giving some reason for choosing one over the other, that's probably going to be a reviewable error.  In other words, unless the plaintiff's submissions fairly summarized the defence evidence and gave cogent reasons why such evidence shouldn't be believed, adopting the plaintiff's submissions, without more, will give grounds for appeal.  If the plaintiff's submissions did fairly sum up the defence position and give reasons why it shouldn't be accepted...then it still isn't ideal, but it gives the framework for a fulsome judicial ruling on the matter.  Which is, in many ways, the purpose of legal argument.

On the other hand, for findings of law, the standard of review is correctness.  It may be troubling to think that the judge isn't independently thinking about these questions, but if he got one of them wrong, that can be corrected by the Court of Appeal without requiring a new trial.

Ultimately, when the judge accepted the whole of the plaintiff's submissions, he sent the message that he agreed with the plaintiff on each and every point.  He was entitled to do that - no question - and the fact that the text itself was authored by one party's counsel doesn't disentitle him to use what he thinks is persuasive from it.  Rather, the question to ask remains whether or not the reasons provide adequate basis for appellate review, and whether or not he erred in any way subject to appellate intervention.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

1 comment:

  1. Update: In May 2013, the Supreme Court released its decision. On the issue I've described above, the unanimous Court determined that this 'judicial copying' did not rebut the presumption of judicial impartiality.

    The Court addressed criticisms of 'lack of attribution' in the same way that I did above: Judicial reasons are not expected to be 'original', and judicial copying is a widespread and acceptable practice. While the extent of copying in this case wasn't exactly ideal, the nature of judicial reasons limits the room for original content, and judges are largely expected to use language that has been used before.