Cal. Litig. 2014, Volume 27, Number 1

Hypotheticals on Litigational Plagiarism:

(See pages 9 -18 for the plagiarism debate)

We were delighted that Elliot Bien took the time and effort to draft Officers of a Court Do Not Plagiarize — embodying the great American notion that "there oughtta be a law" — to propose an amendment to California’s Rules of Professional Conduct to expressly "bar any plagiarism in any submission to a court." We also welcome a vibrant academic debate when it comes our way, though we never expected it would come from Beg, Borrow, Steal, which was descriptive, not prescriptive, and offered nothing (we thought) controversial. To say that the article was an "argument" at all, let alone one that condoned plagiarism, strikes us as a misreading. Even so, the question of "plagiarism" in litigation raises many interesting issues.

To help sort through the gray area, we’re asking for your help! Readers — lawyers and judges alike — what do you think? What have been your experiences with plagiarism? Is this a question of good versus poor practices or a question of good and evil? To help rev your gray cells, consider the scenarios below — or craft your own and drop us a line.

1. A brief contains simple boilerplate language, like a standard of review recitation, that is copied verbatim from a Court of Appeal opinion or a treatise (e.g., "Summary judgment is reviewed de novo. Smith v. Jones (2009) 123 Cal.App.4th 456, 459.") Must the opinion or treatise be cited?

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