Styles of Judicial Opinion Writing

Not Enough Original Words

You copy a little,
But not too much.
Some people say it’s degrading.

In Cojocaru v. British Columbia Women’s Hospital and Health Centre, the Supreme Court of Canada confronted an interesting question whether a litigant may challenge an adverse judgment on grounds that the trial judge plagiarized from the plaintiffs’ submissions.  Cojocaru (May 24, 2013).

In this complex medical malpractice case, the trial court issued its written judgment in 368 paragraphs, of which only 47 were discernibly original.  The overwhelming majority of the paragraphs, 321, were plagiarized from the plaintiffs’ submissions, without attribution.  The Supreme Court agreed that this degree of plagiarism raises a serious question whether the trial judge’s judgment should be set aside as not a truly independent evaluation of the facts and law.  Id. at para. 10-11.

The Court proceeded to note that trial court judgments are “entitled” to a presumption of integrity and impartiality.  The defendants argued that any such presumption was vaporized by the “the extent of the copying, the quality of the copying, the lack of attribution for the copying, the nature of the case and the failure to fulfill the basic functions of reasons for judgment.” Id. at para. 52.

Although acknowledging that the trial court had copied over 87% of its judgment from the plaintiffs’ briefs, the Supreme Court held that the defendants had failed to rebut the presumption of judicial integrity and impartiality.  Id. at  para. 73.  Judicial plagiarism is, according to the Supreme Court, “a longstanding and accepted practice.” Id. at para 30.  The Court, however, acknowledged that excessive plagiarism “may raise problems.”  Id.

The Supreme Court rejected the notion that judges should express themselves in their own language, and that their reasons should be their “original” work product.  Id. at 31.  Copying, according to the Court, does not mean that plagiarist judges have failed to think about and resolve the issues before them.  Id.

The Court conceded that it was not “best practice for judges to bulk up their judgments with great swaths of borrowed material.”  If the carried the copying to excess (presumably much greater than 87%), the copying “may raise problems.”

Rules and prohibitions against plagiarism do not apply to judges, say the Canadian Supreme Court judges.  Id. at para. 32.  According to the high court, lack of originality is a virtue in a system that depends upon precedent.  “Judges are not selected, and are only rarely valued, because of their gift for original expression.”  Id. (quoting, with attribution, thankfully, Simon Stern, “Copyright Originality and Judicial Originality” 63 Univ. Toronto L. J. 1 (2013)).

The Supreme Court cited precedential support of its judgment that judges are too busy to think and write in their own words.  See id. at para. 37, 38 (citing English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605, [2002] 3 All E.R. 385 (holding that copying does not invalidate a court’s decision); id. at para. 41 (citing United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964) (noting that when trial judge “adopt[s] verbatim” the findings of fact submitted by counsel, “[t]hose findings, though not the product of the workings of the … judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence”).

The majority of the intermediate appellate court, the Court of Appeal, had held that the extent and nature of the plagiarism was “cogent evidence” of lack of the trial judge’s judicial integrity.  Although the Supreme Court rejected the conclusion that the trial judge had failed to make an independent decision, the Supreme Court did display some original, independent thought in upholding the defendants’ assignments of error.  The Supreme Court reversed the judgment for plaintiffs on the merits.  Id. at para. 76.

Judicial Verbosity – Too Many Original Words

There is a tradition in New Jersey appellate cases to never issue a short, succinct opinion when a long one is at hand.  Plaintiff Alison Rosenberg took Merck’s drug, Fosamax, for osteoperosis. After undergoing a tooth extraction, Rosenberg developed bone complications of her jaw.  She claimed that she developed osteonecrosis of the jaw (ONJ), and that this condition was caused by her use of Fosamax, and by Merck’s negligent failure to warn that Fosamax causes ONJ. Rosenberg et al. v. Merck Sharp & Dohme Corp., No. A-5271-10T3, 2013 WL 1187916 (N.J. Super. Ct. App. Div. Mar. 25, 2013) (per curiam).

Merck defended and affirmatively sought to show that Rosenberg did not have ONJ.  Its expert witness, Brent Ward, D.D.S., M.D., an expert in ONJ and in maxillofacial surgery, testified that Rosenberg suffered from osteomyelitis, not from ONJ.

At the end of the case, the trial judge instructed the jury to make findings:

“(1) whether plaintiff proved it was more likely than not that plaintiff had ONJ;

(2) whether plaintiff’s development of ONJ was a result of taking Fosamax; and

(3) whether Merck negligently failed to adequately warn about the risks of ONJ from Fosamax.”

The jury resolved the first question by finding that the plaintiff had not suffered from ONJ, and pursuant to the trial court’s instructions, ceased deliberations and notified the court of their final verdict, upon which judgment was entered.  The jury thus never reached the questions about ONJ and Merck’s liability.

Rosenberg, et vir., appealed, contending that the trial judge erred in excluding evidence of Merck’s 2010 change in its warning label, which impeded her attempt to impeach Dr. Ward on the relationship between Fosamax and ONJ.  The problem is that the excluded evidence was relevant only to an issue that the jury never reached.  Somehow the New Jersey Appellate Division managed to draw out its per curiam opinion to eleven pages, in its own words.

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