Liberating the Bride of Frankenmemo
By Karin Ciano
BridgeTower Media Newswires
A late hour in a dark office. A sleep-deprived lawyer squints at a glowing flatscreen, her keyboard pattering: tappity tap tap tap. Ctrl+C. Ctrl+V. Tap tappity tap. Ctrl+C. Ctrl+V. A quick scroll, hit Send, a distant lightning flash and boom of thunder… the monster has been unleashed.
I refer to the Frankenmemo, an ungainly document assembled from the cut-and-pasted writing of others: an introduction extracted from a previous brief, grafted onto a judge’s favorite statement of the procedural rule, stitched to expository paragraphs beloved of partners past. Whether it’s the press of time, the lateness of the hour, the inability to digest unfamiliar material, the fear of getting a detail wrong, or simply a lack of confidence –sooner or later, we are all tempted to say “I do” to Frankenmemo.
Girlfriend, it’s time to get a divorce.
The main reason is that cut-and-paste writing is not effective. Think about it. When you speak with someone, can you tell whether they’re paying attention to you or are distracted by something else? Cut-and-paste writing always sounds like the writer is distracted. When the writer tunes out, the reader will too.
Another reason is plagiarism. “Plagiarism in legal writing?” you ask. “That’s a thing now?” Yes actually. It’s always been a thing for law professors and students. Now, the online tools used to sniff out fake student papers (such as iThenticate.com or Turnitin.com) are widely available to opposing counsel and the court.
Guess what happens? In egregious cases (that is, pages’ worth of verbatim lifting from a source that’s obviously not the writer, sometimes accompanied by fee requests and protestations to the court that the writing is in fact their own) lawyers have been called out in court for copying without attribution. See, e.g., Lohan v. Perez, 924 F. Supp. 2d 447, 458 (E.D.N.Y. 2013); U.S. v. Sypher, No. 3:09-CR-00085, slip op. at n.4 (W.D. Ky. Feb. 9, 2011); Attorney Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 759 (Iowa 2010); Venesevich v. Leonard, No. 1:07-CV-2118 (M.D. Pa. Dec. 19, 2008). Yes, brothers and sisters, our esteemed judges can actually tell when we’re cutting and pasting sections of our brief from Wikipedia, and they don’t like it any better than our teachers did.
But if Frankenmemo is to be avoided, is any copying OK? That’s a trickier question currently the subject of robust scholarly debate.1 It depends on the author, the context, the purpose of the document being drafted, the nature of the document being copied from, and (it would seem) the punctiliousness of the scholar writing the article. Everyone agrees that practicing lawyers copy the heck out of one anothers’ pleadings; not everyone agrees what (if anything) to do about it. So here’s my unscientific survey of the literature:
It’s still OK to draft documents collaboratively without individually naming every member of the cast and crew. A day may come when every court filing begins with an “Acknowledgments” section, but we’re not there yet. Take your team out to lunch instead.
Attribution is always in fashion. Unlike more creative fields, law favors giving credit to others; there’s an entire (Blue) book on the subject. We learn to “support every assertion of law or fact with authority.” (I’m pretty sure that’s a quote from my first-year legal writing teacher because I remember having to look up “assertion”). Take a deep breath: you already know how to solve this problem. Use what you know.
Avoid copying whenever originality is expected. Judge Richard Posner has written that “originality is not prized in law,” and most of us are writing to achieve a result, not to express original ideas. When the stakes are low and the need for speed is high (looking at you, interrogatories) we may overlook cutting and pasting if we notice it at all. Yet reader expectations matter. Courts expect legal memoranda to be tailored to the case at hand, because anything else wastes the court’s time. When a reader needs your focused attention and presentation, avoid copying. If you absolutely must copy (for example, to achieve a consistent style in pleadings), leave time to edit so that the seams don’t show. A pleading may feel like a ransom note, but it should never look like one.
What happens in court never stays in court. Filing documents in court is as close as most lawyers will get to “publishing.” The odds of someone recognizing copied material goes way up once the words are out in the world. If you might have inadvertently copied a source verbatim, think about using a plagiarism detector before you file. You can (and should) always edit to say the same thing in your own words.
Speaking of your own words, your writing is probably better than you think. It’s okay to privately copy other people’s words so that you come to develop a feel for good sentences and paragraphs — but the only way you’ll become as good a writer is to practice doing it on your own, without the aid cutting and pasting. None of us started as great writers. (If you need inspiration, I commend to you the scene in “The Paper Chase” movie where James T. Hart finds Professor Kingsfield’s student notes. Don’t know what I’m talking about? Ask a colleague over 40. Maybe over 45 just to be safe.)
Don’t let Frankenmemo2 hold you back – copy rarely, thoughtfully, and always give credit where credit is due.
1Here’s me dropping a note to acknowledge the authors who spotted and analyzed the cases cited in this column among many others. See Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2018-3: Ethical Implications of Plagiarism in Court Filings; Diane B. Kraft, When is Copying OK in Legal Writing? Kentucky Bench & Bar 30 (May 2013); Benjamin G. Shatz & Colin McGrath, Beg, Borrow, Steal: Plagiarism vs. Copying in Legal Writing, 26 California Litigation 14 (2013); Peter A. Joy & Kevin C. McMunigal, The Problems of Plagiarism as an Ethics Offense, 26 Criminal Justice (ABA 2011); Carol M. Bast & Linda Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Catholic Univ. L. Rev. 777 (2008).
I did not invent the term “Frankenmemo”; I am borrowing it, with thanks, from an undisclosed source I hold in high regard.
