Silly briefwriting conventions: Overuse of parenthetical shorthand names
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Is it okay to copy someone else’s brief?

Would you believe that copying someone else’s brief could be a copyright infringement? Believe it. In Newegg Inc. v. Ezra Sutton, P.A., 120 U.S.P.Q.2d 1111, 2016 BL 299780 (C.D. Cal. Sept. 13, 2016), the draft brief’s author sued the copying lawyer for copyright infringement. The court granted the author a partial summary judgment on liability, rejecting the copying lawyer’s defense of fair use. (Hat tip to Dane Ciolino, Louisiana Legal Ethics.)

Newegg does seem to be a rare case. According to the decision, the plaintiff had a registered copyright on its draft brief. How often does anyone register a copyright on a draft brief? Still, this is not the first time that a lawyer got in trouble for filing a brief that was, in essence, someone else’s work product. A few years ago, an Iowa lawyer was sanctioned by a bankruptcy court and disciplined by the Iowa Supreme Court for filing a brief that copied liberally from an article written by two other lawyers. Both courts concluded that, by lifting his argument almost verbatim from the article, the lawyer committed plagiarism. Iowa Supreme Ct. Disciplinary Bd. v. Cannon, 789 N.W.2d 756 (Iowa 2010); In re Burghoff, 374 B.R. 681 (Bankr. N.D. Iowa 2007). More recently, a lawyer representing Lindsay Lohan was ordered to pay $1,500 in sanctions for copying her brief from unattributed sources and filing a misleading letter with the court in response to the allegation of plagiarism. Lohan v. Perez, 924 F. Supp. 2d 447 (E.D.N.Y. 2013).

These stories provide two lessons. First, always, always cite your sources. That’s easy. The second lesson is more difficult: do your own writing. If you like someone else’s brief so much that you want to reuse it, don’t just copy it. If court rules allow you to simply adopt another party’s brief, do that. If you can’t (e.g. if the brief was filed in a different case), then make the argument your own. Read and understand the authorities cited in the brief. Vet those authorities yourself to make sure they’re good law. Explain in your own words how the authorities apply to your case. Be a lawyer. Don’t be a hack.

For more thoughts on the murky area between plagiarism and legitimate copying, read Beg, Borrow, Steal: Plagiarism v. Copying in Legal Writing, Calif. Litig. vol. 26 No. 3 at 14 (2013), by Benjamin Shatz and Colin McGrath.

Comments

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Peter Friedman

It is an interesting issue. My own take on it is that legal writing, and in particular brief writing, should not be protected by copyright. The point of brief writing is not originality and innovation, and copyright's purpose is to promote innovation, not to confer upon the copyright holder a right to the maximum value that can be derived from his work.. Brief writing is done to advocate on behalf of the client. I might even argue that if you'd produce a better or equally good brief by copying someone else's, you'd be fulfilling your ethical duty to the client better than if you it because you'd bebe doing so without imposing unnecessary expense.

Cutting and pasting briefs is what lawyers do, which itself supplies a whole set of reasons why briefs should not give rise to copyright protection. I wrote about the practice's conventions in this regard a lot in an article here: https://ssrn.com/abstract=1538633

The copyright arises merely as a result of the fixing of a work in a tangible medium. While registration confers certain additional benefits (including the right to statutory damages for infringement), it does not give rise to copyright in and of itself. In other words, someone might register a copyright, but, if the work wasn't entitled to copyright protection from the moment it had been fixed in a tangible medium, the registration would not change that fact.

Finally, at the risk of boring anyone unfortunate enough to stumble across this comment, Ken Adams (a far smarter man than) and I had a back and forth on these issues a number of years ago here: http://www.adamsdrafting.com/contract-drafting-and-plagiarism/

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