Judicial Copying in Reasons for Judgment Isn’t Wrong of Itself

In fact, it’s necessary for the efficient functioning of the legal system.

Merits and appearances matter.

Cojocaru British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [CanLII link here], released today, holds, unanimously, that the mere fact judicial reasons duplicate, with or without attribution, a party’s submissions does not amount to reversible error.

The plaintiff succeeded at trial. The BCCA (by a majority) ordered a new trial. The SCC allowed the appeal. Then dealing with the merits, the SCC unanimously varied the trial judgment so that the plaintiff obtained judgment only against one of the defendants. The SCC dismissed the balance of the action.

That, other than deciding which paragraphs to copy in the balance of this note, is the extent of my original thinking. (That’s intended as a straight line, too. Feel free.)

From the headnote

As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.

A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. The party seeking to set aside a judicial decision because the judge’s reasons incorporated the material of others bears the burden of showing that the presumption is rebutted. The threshold for rebutting the presumption of judicial integrity and impartiality is high, and it requires cogent evidence. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind.

The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment‑writing; on the contrary, it is part and parcel of the judicial process. To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time‑honoured traditions of judgment‑writing. The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. Extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.

From the reasons

McLachlin C.J. wrote for the Court.

[1] The main question on this appeal is whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions. For the reasons that follow, I conclude that while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside. Only if the incorporation is such that a reasonable person would conclude that the judge did not put her mind to the issues and decide them independently and impartially as she was sworn to do, can the judgment be set aside.

[2] This result, as we shall see, is consistent with longstanding practice in Canada and abroad. Yet, as the disagreement in the courts below and the arguments before us make clear, the jurisprudential framework and the governing principles involved are far from clear. This suggests the need to look carefully at the nature and function of reasons for judgment and the long tradition of judicial copying.

[3] Applying the principles discussed below, I conclude that the incorporation of large portions of the plaintiffs’ submissions in the reasons in this case does not justify overturning the trial judge’s decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. This said, aspects of the reasons disclose palpable and overriding error and must be set aside. In the result, I would allow the appeal, but vary the trial judgment

[26] In a case such as this, the essence of the complaint is not that the reasons are functionally insufficient — the parties agree that on their face, the reasons explain what was decided and provide a basis for appellate review — but rather that the judge’s wholesale incorporation of the material of others shows that he did not put his mind to the issues and decide them impartially. It is a complaint not about sufficiency, but about process, and stands to be resolved on the basis of the core analysis in Teskey [R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267]  — whether the presumption of judicial impartiality has been rebutted.

[27] The presumption of judicial integrity and impartiality is a high one, which can be rebutted only by cogent evidence.

[28] Procedural defects relating to reasons for judgment are many and varied. In all cases, the underlying question is the same: would a reasonable person, apprised of all the relevant circumstances, conclude that the judge failed to come to grips with the issues and make an impartial and independent decision, thereby defeating the presumption of judicial integrity and impartiality?

[29] Evidence capable of displacing the presumption of judicial integrity and impartiality may take different forms. It may be intrinsic, arising on the face of the reasons themselves. For example, no reasons or unintelligible reasons may be challenged by the form of the reasons themselves. Or it may be extrinsic: for example, evidence that the judge issued a decision before receiving the submissions of counsel touching on an important issue; that the judge was overheard telling someone that he was determined to find in favour of one of the parties regardless of the evidence; or that there was delay in issuing the reasons or extensive incorporation of material. The analysis is holistic and contextual. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind: Teskey.

[30] The issue before us is not whether the practice of incorporating what others have written into judgments is a good thing. As we will see, judicial copying is a longstanding and accepted practice, yet one that, carried to excess, may raise problems. Rather, the issue is when, if ever, copying displaces the presumption of judicial integrity and impartiality.

[31] Approached from this perspective, a number of the criticisms advanced against copying fall by the wayside. One such criticism, made by the majority of the Court of Appeal in this case, is the judge’s failure to attribute the incorporated material to the original author. This criticism is connected to the idea that the reasons should be the “original” product of the judge’s mind, and that to the extent they are not, the judge should acknowledge her sources. Failure to attribute sources and lack of originality, without more, do not assist in answering the ultimate question — whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided, resulting in an unfair trial. The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment-writing; on the contrary, it is part and parcel of the judicial process. It may not be best practice for judges to bulk up their judgments with great swaths of borrowed material. But the fact remains that borrowed prose, attributed or otherwise, does not, without more, establish that the judge has failed to come to grips with the issues required to be decided.

[32] To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment-writing. The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement. Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples. In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press. The task of judgment-writing is much different. As Simon Stern puts it:

Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law…. [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before. This tendency, though visible throughout the legal system, is most pronounced at the trial level. [Emphasis in original; p.1.]

 (“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)

[33] The scope for judicial creativity is narrow, but not non-existent. It finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law. Nevertheless, it remains the case that judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are “usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche” (Stern, at p. 2). Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.

[34] In this spirit, and in the interests of expediting judicial business, courts actively encourage parties to submit written arguments and proposed orders. This process is accelerating. In the United States, and more and more in Canada, courts welcome electronic submissions. Such submissions help the judge get the decision right, facilitate the task of judgment writing and speed the judicial process. As Gregory M. Silverman frankly observes, the “benefits provided by electronic filing” include “reduced time for … retyping as portions of one document can be easily transferred to another using the cut-and-paste operation of word processing software” (“Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet” (2004), 79 Wash. L. Rev. 175, at p. 196).

[35] The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment-writing unfair. A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially. No one could reasonably contend that the process has failed in such a case.

[36] To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.

[37] Judges are busy. A heavy flow of work passes through the courts. The public interest demands that the disputes and legal issues brought before the courts be resolved in a timely and effective manner, all the while maintaining the integrity of the judicial process. In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose. In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to be set aside. While the theoretical basis on which the result is explained varies, this is the position in England, various commonwealth countries, the U.S. and in Canada.

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Comments

  1. The déja lu phrase from Simon Stern’s article is not a typo for déja vu; I learned today that it describes the experience of having read something previously.

  2. Luke, I suggest that Professor Stern was using a play on words. I do not believe that ‘déja lu’ is a standard expression, as ‘déja vu’ is. But since he was discussing something read before, he thought it would be cute to rephrase it – and I think he was right. He may not be the first person to do that, but it is rare enough to draw attention when it is done.

    It seems from what the Court quoted from it to be a good article.

    My concern is just that this kind of copying perpetuates archaic vocabulary and unduly complex structure, and makes old-fashioned writing seem ‘right’, ‘the way the law is’.

  3. David Cheifetz

    Thank you Luke. My error, I ought to have checked the source rather than assuming a typographical error. I will fix it.

  4. John,

    I wish that had been my intention rather than assuming a typo.

    If the point is made in an appropriate way, the judge should be able to use the phrasing of counsel rather than have to search for different wording to avoid a presumption of impropriety.

    David

  5. David, your three-line summary is a LOT more economical than the Chief Justice’s reasons, but they sum the decision up nicely. She repeats herself more than usual, it seems to me, which is not the point of the decision…

  6. Professor Stern’s article is excellent, and available from SSRN at: http://ssrn.com/abstract=2147951.

    I am very pleased to report that Déja Lu is the name of a used bookstore, in Colorado.

  7. David Cheifetz

    The SCC’s reasons need to set out the justification for the conclusion, too, in a way that that the adequately informed member of the public ought to be able to understand.

  8. m. Diane Kindree

    “Nullumst iam dictim quod non sit dictum prius–Nothing is ever said that has not been said before.” Publius Terentius Afer: Eunuchus,41

    Did the author of the copied text receive credit for their contriubtions to this judicial decision?

    Interestingly, it took more time to copy and paste this latin phrase than to type a credit to the playwright. I agree that Judges are busy but think of all the time being saved by copying someone else’s reasoning word for word in their judgement. In every respect, this case is about plagiarism which is a common but still unacceptable offense under the Academic Code of Conduct. I hope someone can help me to reconcile the ethical relationship between judicial dignity without honesty. Ultimately, the public needs to understand two things: who really wrote and/or co-wrote a judgement and what is deemed permissible is not always honorable. “Non omne quod licet honestum est”. Corpus Iuris Civilis, Paulus, Ibid.

  9. Ginger Goodwin

    Oh my my, Kindree has hung out some ripe fruit.

    Plagiarism is an historical concept, not a universal category to be used in all and every historical periods. When a person can be killed by the state or by the powerful, attributing authorship is of secondary and in some cases of no consequence to the whole of society.

    Technology has enabled writers, typists and scribblers to add “stuff” (nod of the head or attribution to George Carlin but also to the geniuses of all ages) to the universe unknown to human beings in preceding generations. It is easier to copy then to formulate one’s own thought or thinking and let’s not get into the issue of original thought — which most geniuses agree – is very rare.

  10. Psst – folks – I’ll let you in on a secret.

    This case NEVER involved plagiarism. That’s just the media’s conceit.

    If you don’t understand that, and why, you weren’t paying attention when you read the SCC’s reasons.

    What’s that? You didn’t read them ? Your view is that you didn’t and don’t need to to sanction or sanction? That figures.

    Lawyers want judges to copy – accept – the lawyer’s view of the case, whether the position is made in oral submissions or written submissions. Everybody involved in the process knows that, accepts that, and strives openly to use that fact to their client’s advantage.

    Assume the judge was good at some version of shorthand and he or she had essentially reproduced, in the written reasons, the oral submissions of the lawyer. Do you think we’d have still had the same complaint? Or would the assumption of have been that the judge must have thought about the merits when the judge translated the shorthand into coherent prose?

    Speaking about figures, there may be many ways (in words) to describe a square. If they’re correct, they all mean the same thing. We are not dealing with roses, unless there’s a wrong odour. But that’s what there wasn’t, here.

    There’s an old, bad, joke about a man who spoke – let’s say English – and claimed he could understand any language except Greek. You should be able to figure out the punch line: what his answer was no matter what other language he was asked to translate.

    Well, guess what: law is one of those other languages, too.

    You should be glad this wasn’t a jury trial of your peers. Then you’d have no way of knowing why the jury decided what they did, beyond what’s on a list of answers to a short series of questions.

    I’m going to pose a question. It’s rhetorical for me. Regardless, this reply ends my involvement in this thread.

    If you’re prepared to presume, absent something relevant to the contrary, the validity of what amounts to an unexplained jury decision so long as the relevant evidence is capable of supporting that decision, what’s the basis for your problem with what the trial judge did here (assuming you have a problem)?

    Dylan wrote that you don’t have to be a weatherman to know which way the wind blows. He didn’t write that you don’t have to know anything about what weather means. On the other, who knows what Dylan really meant. He was mumbling and it might have been a rainy day.

    For what it’s worth.

  11. m. Diane Kindree

    David,

    Your assumption that I didn’t read SCC reasoning before I made my comments is insulting. I guess I expected much more from you but I welcome your attack directed at the principle of the thing. Your additional ramblings are simply making a mokery of a real problem of authenticity and the amount of copying, based on written submissions, that should appear in a judgment. How much copying verbatim is reasonable? It is not just a matter of legal content but also one of perspective and so, even the “media’s conceit”is a valid query. If how you define yourself also determines how you are received than summary, paraphrasing, evening “copying whole paragraphs” has a limit especially, if you are a judge. This is a problem of finding the most appealing and persusasive way to present preexisting opinions in a more accurate light.
    David, you are a wonderful contributor to this site and I have developed considerable respect for your opinions. Unfortunately on this matter, we simple disagree. I can’t promise this will NEVER happen again but then never, say never.

    Ginger,

    After reading your latest comments, I gathered up all my ripe fruit and put them in the freezer. I plan to make smoothies with them. I enjoy your energy, commitment and content.
    It is invigorating to read your original thoughts even if they are not original.

  12. In Crinion v. IG Markets Ltd., [2013] EWCA Civ 587, decided last week, the English Court of Appeal had to deal with the question whether the cutting and pasting of counsel’s arguments by the trial judge exceeded what was proper. Sir Stephen Sedley, whose entire reasons are quoted, said:

    38. Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.

    39. Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done. In principle, no doubt, it differs little from the modus operandi of the occasional judge, familiar to an earlier generation of counsel, who would pick up his pen (sometimes for the first time) and require the favoured advocate to address him at dictation speed. But in practice, for reasons which Lord Justice Underhill has described, the possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for, as Lord Justice Underhill says, appearances matter.

    40. Although I agree, even so, that enough can be teased out of the judgment to satisfy the legitimate demand of the Appellants for reasoning which deals with their respective cases otherwise than through the prism of the Respondent’s argument, I hope that a judgment like the one now before us will not be encountered again

    In the result, the Court of Appeal unanimously dismissed the appeal.

    The question is not whether counsel’s argument has been adopted or not but whether the judge has given a satisfactory reason for the result to the losing party, keeping in mind that appearances matter.

    There are, of course, earlier cases where an appeal was allowed on the basis that the decision of the trial judge was not truly a judicial decision. See, e.g., Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1, (Ont. C.A., Morden A.C.J.O., Abella & Goudge JJ.A.). My summary of the case is: A trial judge — he wasn’t named in the Court of Appeal but his name can easily be discovered — had dismissed plaintiff’s claim against the defendant bank and a solicitor for breach of fiduciary duty and negligence. The appeal was allowed on the ground that there was nothing to indicate that the judge attempted to consider the case fairly or decided it independently. Morden A.C.J.O. went out of his way to castigate the trial judge for the judgment that he “wrote”: it was all copied from counsel’s arguments.

  13. Miliband, père of « Ed » and David of UK Labour Party, wrote the following in the late 1960s and applies today :

    « … judges in advanced capitalist countries are men [my addition : and some women] of a conservative disposition, in regard to all the major economic, social and political arrangements of their society. »

    « Moreover, governments which are generally in charge of the appointment and promotion of judges are most likely to favour men of precisely such conservative dispositions. Notwithstanding the general ideological bias of the legal profession, there have been radical lawyers eminently qualified, on every criterion but this one, to hold high judicial office. But they have seldom found much favour in the eyes of the appointing power; nor have the judges of the inferior courts who have given rise to the belief that they were moved by reforming impulses. » p.139

    State in capitalist society by Ralph Miliband, 1969, Weidenfeld and Nicolson, London.

    The text business is a red herring. Follow Teskey and all is well. The long decision by the Chief Justice is a gathering of the current elders within the same tent. No one wants this crew pissing on the tent, better to piss inside. The issue is not the long elaborate rationalizing of a common sense description of a minimally impaired rational decision maker in any area of life or of responsibility. The issue is the following : we don’t want the appointment to the Canadian judicial system (all and any level) the kind knucledraggers the like of which is currently on display in the US : Alito, Scalia, Roberts and old Uncle Tom himself. This is not an aberration for the US, but putting this crop even against the rest of the world’s courts in most more authoritarian countries, it is bad. The US comes off looking like a clown, which it is not – but rather as an elephant in a very expensive, high end jewellery shop and/or rats in sewers (both analogies do not do justice to either elephants or rats as Dr. Hunter S. Thopmson of Gonzo fame might quip — it is worse than that).

    The last 3 appointments come very close to the US level : an anglophone with hard political right tendencies and unilingual at boot (and proud of it, sort US but not as bad); a woman with so little experience and proven competence (except for running bureaucracies – which for any form advancement within said bureaucracies requires a subservient manner and disposition of great notice and talent to advance) that the appointment cries out – WTF, out of her depth and competence; the one from Québec carries the sulfurous smell of his old man — hanging judge and authoritarian Claude Wagner (here is hoping that the axiom, apple not fallling very far from the tree does not apply). So they close ranks. It is not uncommon for the incompetent and incapable to become competent and capable with experience and an added touch of fairie dust, to subsequently (after their elevation and appointment) bewail the newly appointed – who are clearly incompetent and incapable. This is just the nature of the elite manoeuverings in and of all ages – must be a genetic thing. On the other hand, gorillas don’t seem to have that problem – compentency determines the hierarchy. However closing the ranks to the incompetent does not deal with the issue of class and social distinctions.

    Chefeitz is right – this is not plagiarism, law for the most part is about sycophancy. Take a look at the famous Somersett v. Stewart case of Lord Mansfield (slavery and breathing air in the UK) where he reads the entire submission both parties into the record and the decision.

    No the issue for progressive people is not about the above justification, rather the issue is to be found in the interpretation act which speaks directly to interpreting according to a liberal principles. The CJ is addressing basic issues upon which the liberal interpretation cannot exist if these prior conditions (the basic issues) do not exist. Once established it is then within the realm of possibility that the those outside elite (in all its forms – political, economic, social, judicial, etc.) have at least a modicum of a chance of winning some form of justice.

    Kindree, we may be of kindred spirits. I claim no originality but simply perhaps to shining a different coloured light upon the giants of the past. I don’t sit on their shoulders either. Just a dwarf, hoping for better times.

    And agreement with Sedley. Judicial mores following very slowly on the changing values of society (snail like speed) are changing for the better and the positive.

  14. Labour arbitration is a whole different issue.
    Whether under a collective agreement where the specific arbitrator(s) are named for the duration of the agreement or they agree to appoint a representative and they choose a third who sits as neutral, labour unions prefer this kind of approach to its opposite: the unilateral appointment by a labour board or a minister of labour of a person or persons to mediate, conciliate, and/or in the end arbitrate.
    CUPW has had some success in the past few years in turning away appointed government (federal) arbitrators on the alleged or pro forma appearance of bias against the unions. However this is of little consequence in the long run for the same reasons that have discussed above with regard to appointments to the Bench.
    The issue is not one of competence but ideology. And ideology is the deal breaker for anyone interested in justice in all its forms. It is only in the recent past that 7 year olds were not hung for stealing or pickpocketing in England (400 years in the span of time is not long).
    So goes for the pre-eminence of the Crown, “obey now, grieve later” and the kicker, wages to the end of the line in bankruptcies. Same sort of thing goes for pensions.
    Then there is “at the time” child Khadr and the decision of the SCC about his status which is an abomination of the first order. Chrétien, Martin and Harper, if there is a Maker, will hopefully roast in Hell, with Nixon and Kissinger.

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