Concurring Opinions picks up an interesting dispute between a Western District of Pennsylvania trial judge and the Third Circuit:
["How Closely Can Judges’ Opinions Mirror Filings?"] was the question at issue in the remand of Bright v. Westmoreland Cty., 341 F.Supp.2d 525, where the Third Circuit had suggested that the district judge’s opinion was a little too close to the defendant’s proposed order (well, actually, almost a verbatim copy). Here’s the judge’s response [on remand]:
[T]he starting point of numerous documents, eventually signed by this Court, and by other district court judges in this and other districts, may initially be counsel’s work product. Why are district courts throughout this country receiving attorney work product on “computer disk/cd,” if they are not to be used as a starting point? It never occurred to me at that time that anyone would view as improper the practice of an attorney’s work product serving as a starting point for a Memorandum Opinion from this Court. . . .
[Moreover,] In addition to “two substantive changes,” I made over sixty (60) “markings,” including correction of citation form, verb changes, tense changes, spelling corrections, etc. My training as a law clerk for a well-respected Judge of the United States Court of Appeals for the Third Circuit and as a member of the Virginia Law Review, as well as over thirty (30) years of trial practice, taught me that such matters were important.
The conflict reminds me of the recent controversy over a judicial nominee accused of "appropriat[ing] without attribution . . . substantial portions" of an article. Both situations suggest that judicial and scholarly independence require a commitment to "make it new;" perhaps only stylistically for the judge, but substantively for the scholar.
I have to side with the District Judge there. While a wholesale adoption of a party’s argument could reveal laziness by the judge, the simple truth is that many of us lawyers take our jobs very seriously, and many of us spend a lot of time and effort perfecting our legal arguments.
If you see a written pleading from me, odds are that I have tried to word every sentence in there as best I could, paying close attention to style, length, word choice, cadence, fidelity of my arguments to the cases therein cited. I also strive to ensure that the arguments I put forth are consistent with the relevant legal principles in general, enabling them to be applied or distinguished in other cases. (That may sound like a waste given the case-particular duty of zealous advocacy but, once you’ve seen your overzealous arguments blown away at appeal, you’ll see the merits of a cautious, consistent approach).
Judges should always verify the arguments made to them by counsel — even putting aside malicious intent, mistakes do happen — but if a judge reads the words I agonized over, taking into account all my understanding of the case, well, that may just mean I did my job well, not that the judge did anything wrong.
How’d the story end? On second appeal, the District Court was affirmed in what is an important state-created danger / 1983 opinion in the Third Circuit. Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006). I guess the carbon copied lawyer was right the first time around.