A Canadian Appeals Court found that a judge copying entire portions from an attorney’s brief rendered it impossible to ascertain the jurists’s reasoning. So the court now has to try again.
Although Justice Donald Lee of Court of Queen’s Bench called the retyped paragraphs his Reasons for Judgment in the two related opinions last year, “[e]very one of the paragraphs in the reasons was extracted essentially verbatim, from the chambers briefs,” wrote the Alberta Court of Appeal panel. “There is no independent authorship. Even spelling mistakes in the briefs are faithfully carried forward.”…“The compilation of passages from the chambers’ briefs does not disclose how the judge arrived at his decision,” the panel stated. “Deciding between competing adversarial positions is at the core of judicial function. This fundamental obligation cannot be discharged without the judge conducting an independent analysis, and articulating it in the appropriate form.”
One metric I want to run with a tool I’m working on is similarity between briefs and opinions I doubt most judges are as brazen (or sloppy) to copy entire passages from briefs, though I’d be willing to wager that a lot of opinions have chunks, if not citations lifted directly from briefs.
I think Eugene Volokh blogged about this 2009-2010ish, but I can’t seem to find the posts.