Sunday, August 22, 2010

Peter Friedman on Plagiarism in Law School and Legal Practice

Following up on our earlier post (and Norwegian video) on the subject of plagiarism, Peter Freidman at Case Western Reserve University School of Law sent me a link to his interesting essay on plagiarism in law school and in legal practice.  If you submit a brief to a court and the court uses part of that brief in its opinion without attribution, is that plagiarism?  No, and furthermore you as the lawyer would probably be happy to have the court lifting sections of your brief because it would likely mean that you won the case. 

Here's an excerpt from Peter's essay:

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

Click here to read the full essay.


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At the risk of being labeled pedantic, or perhaps grumpy (?), I will once again point out what I consider an egregious grammatical error in a post here. The plural of student is of course students, not student's. (See fifth line of the excerpt from Peter's essay.) I do think that errors of this sort sap the credibility of any professional blog, but particularly one devoted to legal writing.

Proofreading is a dying art--no doubt about that.

Ben B.

Posted by: Ben Bratman | Aug 22, 2010 7:03:31 AM

Ben -- thank you for the correction.

Posted by: Peter | Aug 22, 2010 12:24:47 PM

Ben -- thank you for the correction. I've taken the liberty of correcting the mistake in the original post.

Posted by: Peter | Aug 22, 2010 12:29:36 PM

Ben, you and I both know that Peter is an expert writer. "To err is human, ...."

Posted by: Sue Liemer | Aug 22, 2010 5:14:37 PM

I'm not sure "student's" is wrong -- if Peter was talking about the ability of a single student to be certified, it should be "student's." Of course, if he was talking about several students, it should have been "students'." Am I missing something?

Posted by: Mike Shpiece | Aug 23, 2010 10:40:25 AM

Glad to be of help. If I were to make an error or oversight of this sort, I hope others would call it to my attention--albeit perhaps in a manner less pedantic and high and mighty than my own!!
If it sounded as though I was adversely judging Peter, I apologize. I was not. I just think all of us in Legal Writing, including myself, bear an extra burden to pay particularly close attention to detail in our written work.

Posted by: Ben Bratman | Aug 23, 2010 6:48:58 PM

What you are missing, I believe, is that one of your co-bloggers fixed the mistake. It was in the fifth line--"to teach student's to put together..." As this was not a possessive, somebody responded by appropriately removing the apostrophe. All's well that ends well??

Posted by: Ben Bratman | Aug 28, 2010 3:24:25 PM

All's well.

The end.

Posted by: Mark | Sep 3, 2010 3:17:46 PM

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