ABA Journal

While amusing, it’s amazing how rare such admonishments are.  I’ve seen blatant cut-and-paste jobs accepted by courts without question.  Then again, that’s not saying the cut-and-paste jobs were wrong on the law.  And, while Wikipedia might not be an accepted source of the law, its articles tend to be well-cited with caselaw and statutes.  I wonder if the attorney failed to copy the cites?

By John on 2011 04 07, 9:05 am CDT

There are so many plagiarism checker programs out there that it’s not only unethical to “steal” the ideas and words of others, but it’s just plain dumb.  Even short of plagiarism checkers such as “Turnitin.com,” all I have to do to check the originality of a suspect sentence is copy and past it into a Google Search and the various original sources for that sentence are displayed for me within seconds.

Citation is so quick and easy that it is just sloppy to not reference sources.

As for Wikipedia, there are valid concerns about the integrity of the source. That’s not because every Wiki article is suspect, but because some are, therefore casting some doubt on them all.  For my students, then, I parrot my University’s policy that Wikipedia references are disallowed.

Nevertheless, Wikipedia is a wonderful source to jump-start the thinking process and add direction at the brainstorming stage of a writing project.  The ideas in Wikipedia are good, if not always complete.  But good research should use Wikipedia only as a launching point into those documents and sources that truly would provide reliable legal guidance and precedent.

John, your comment that just because the information came from Wikipedia doesn’t mean that the information was incorrect, and you are quite right, of course.  Even the most basic Legal Writing and Advocacy course at the OneL level, however, encourages lawyers to come up with something better than the bare minimum to get by.

By Jim on 2011 04 07, 11:40 am CDT

Jim @ 2: The Google a suspect phrase/sentence trick also works to check for potentially infringing claims in patent searches.  : )

By BMF on 2011 04 07, 11:49 am CDT

I wrote about this yesterday as well, and it’s worth noting that there seems to be a split among Fed Dist Courts as to whether or not Wikipedia is a valid legal source. See:

http://associatesmind.com/2011/04/06/then-again-maybe-wikipedia-is-a-proper-legal-authority/

S.D.N.Y. gave the topic a thorough treatment a couple of years ago. I link to a PDF of the holding at my site above.

By Keith Lee on 2011 04 07, 11:51 am CDT

Excellent info, BMF and Keith.  Accurate legal references should be like Income is to the IRS, valid “...from whatever source derived….”  But it’s always better to support a claim with original sources, and solid legal citations will certainly make better impressions on the legal practitioners and professionals won’t it, contributing a certain degree to ethos in persuasive writing.

Google is amazing.

By Jim on 2011 04 07, 1:38 pm CDT

Dear me.  If “Wikipedia is not an acceptable source of legal authority in the United States District Courts,” I wonder how the court came to the realization that the submission before it was identical to topical content in Wikipedia?  Does this judge also razz his friends for posting on computer dating sites?

Busted!

By B. McLeod on 2011 04 07, 6:40 pm CDT

Hold on a second… This is not the first article in recent memory about a similar occurence - judicial reprimands for unoriginal legal writing.  The first case had issues beyond plagiarism - apparently a lawyer submitted a hefty bill for copied work.  That raises an ethics issue that has nothing to do with originality.

In this case, though, the ethics issue raised by the judge seems altogether manufactured.  We’re not talking about a quotation without a citation in a law review article, or someone’s dissertation, or homework assignment.  We’re talking about writing to a court.  They’re practical documents.  Where did the authors warrant that any or all of the ideas expressed within were original?  And We’re not warranting originality or taking credit for the ideas therein.  Part of the idea is to convince the audience that what we’re writing is *not* originally, but well-accepted.  So copying without attribution is not fraudulent.  And if my take is correct, many legal style books say that citations, outside of caselaw, (i.e. “I’m quoting Erwin Chemerinsky for this!” or I"m quoting wikipedia for that…”) should be omitted unless the source somehow adds weight or credibility.  Personally, if I had to quote wikipedia, I would not want to call attention to it, because it just seems crass. 

Of course, I’m not saying that as a general rule, anyone should rely on wikipedia for their legal research—I know several lawyers who come as though they do, and it’s not impressive.  But, hey, sometimes, it’s right.  And if it is, why should one not use it?  Especially if it’s a cost-effective shortcut for the client.  Again, outside of academia, shortcuts can sometimes be a good thing.  Can anyone convince me that this is an improper shorcut?

By De Minimis Matt on 2011 04 08, 2:51 am CDT

A lawyer who can’t write a brief on something as basic as ineffective assistance of counsel without turning to Wikipedia shouldn’t be practicing law. Actually, a lawyer who can’t write on any legal subject without copying material from a third party shouldn’t be practicing law. There are no sources on legal subjects, including the major treatises and law reviews, that don’t have errors in analysis or citation. These may be a good place to start, but it is malpractice not to check the underlying case or statutory references so that those primary sources ultimately become the basis for the brief. Quoting treatises and articles even with appropriate attribution is only legitimate when there is no primary source available.

Richard Hunt

By Richard Hunt on 2011 04 08, 8:29 am CDT

Wikipedia text is licensed under the Creative Commons Attribution/Share-Alike License 3.0 (Unported). “You can re-use content from Wikimedia projects freely, with the exception of content that is used under ‘fair use’ exemptions, or similar exemptions of copyright law.”

However, the Creative Commons license requires attribution. So the two key words in the footnote are “without attribution.” Otherwise, the text is licensed for commercial use, including the creation of derivative works. And the lawyer didn’t include the re-licensing notice information (lest anyone be concerned about infringing the lawyer’s copyright in the motion submitted to the court).

Given fair use and the other exemptions under copyright law, and the more fundamental question of to what extent copyright subsists in the Wikipedia text, I’d be inclined to bet on the lawyer in a real copyright case.

BTW, where can I find the official list of “acceptable source[s] of legal authority in the United States District Courts”? Is that somewhere in Title 28? Or an FJC publication? Maybe a local rule? I can’t believe I’ve practiced so long without running across it.

By Old Scribe on 2011 04 08, 9:47 am CDT

“Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon… you know, cause I’ve worked in a lot of [law] offices, and I tell you, people do that all the time.”

By jackcatscal on 2011 04 08, 9:50 am CDT

@Old Scribe

RE: list of “acceptable source[s] of legal authority in the United States District Courts”

Not sure. I looked around a bit myself but couldn’t find anything concrete. I wonder if that was just the Judge laying into the attorney. Like I noted, a number of other courts seem to have allowed it.

By Keith Lee on 2011 04 08, 10:12 am CDT

Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008) (Wikipedia is not a sufficiently reliable source); Campbell v. Sec’y of Health and Human Servs., 69 Fed.Cl. 775, 781 (Fed.Cl.2006) (observing that a review of the Wikipedia website “reveals a pervasive and, for our purposes, disturbing set of disclaimers”); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr.2008) (“Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?”)

By joe on 2011 04 08, 10:45 am CDT

You’re kidding, right? Guys, blogs are acceptable, of course, as is Popular Mechanics, the Springfield News-Leader, and opinion polls taken in the foyer of the local Sam’s Club….

Don’t you think that members of the lofty legal profession can do a little better than plagiarizing from an online public access encyclopedia? Or has law gone the way of Jerry Springer society, where appeal to the lowest common denominator of society counts as ‘common sense,’ and drafting a legal document takes on characteristics of a first-grade writing assignment, lifted from a source?

Legal professionals or not, we can do better. And finding ‘acceptable legal sources’ should start in the law library, not pop culture.

By jim on 2011 04 08, 10:50 am CDT

How did the judge even know about the plagerism, unless he (or his clerk) uses the source himself? Just wondering…. That being said, while Wiki can be a good start, the original sources need to be found and used.

By MBT on 2011 04 08, 11:10 am CDT

When I took my first year research and writing course at the University of Houston back in the mid 1980s pre-Wikipedia, it was taught the order of precedance of authority.

The primary source was case law, preferably that of an appeals court in the line of appeal for the case involved.

Secondary sources are law reviews, tretises etc.

There is enough case law on ineffective assistant so he should have been citing case law instead of using Wiki for his brief.

By Mark on 2011 04 08, 11:32 am CDT

I know nothing about this case, but I’m going to freely speculate on a non-nepharious way this could have occurred.

Lawyer A cuts and pastes from his firms existing brief bank, state CLE forms, court opinions, law review articles, etc., and contributes to a Wikipedia article.

Lawyer B cuts and pastes from his firms existing brief bank, state CLE forms, court opinions, law review articles, etc., and drafts his pleading.

Lawyer B thus has identical text to portions of a Wikipedia article, but did not get the information from the Wikipedia article.  This scenario does not seem far-fetched to me.

Lawyers A & B could even be the same person as far as this goes.

By counsel of frankenstein on 2011 04 08, 12:08 pm CDT

does thi guy know the fella from jersey? you know the one who got the mistrial?....

By large weasel on 2011 04 08, 1:40 pm CDT

If I know that another lawyer in my office (i.e. assuming no copyright issues with same employer) has drafted a good brief on an issue, or contract precedent, sure I could draft from scratch, but I will save my client money and am less likely to miss something if I don’t reinvent the wheel. If I have a non-lawyer employee draft something and then revise and edit it myself and take responsibility for it, I am similarly saving the client money. Using Wikipedia as it was in this case sounds like it may have been plagiarism (dishonest per the court) as well as copyright infringement (depending on what/how much was copied, Wikipedia’s terms, etc.), but Wikipedia’s lack of authority is irrelevant to whether or not the document as submitted is inherently a good argument - if it was a good argument then whether it came from Wikipedia or a lawyer down the hall doesn’t matter (except for the honesty/legality/ethics issues, of course!). The lawyers were criticized for plagiarism - i.e. they were making an argument, not asserting the truth of an “authoritative” source.

By df on 2011 04 08, 2:18 pm CDT

complaining about plagiarism in a brief is kind of like complaining about plagiarism in a computer program.  a brief is a functional document, not a work of literature.  it should not matter whether it contains large sections cut and pasted from somewhere else, and not attributed or not fully attributed to the original sources of authorship.  who cares who wrote it first, unless the person signing the brief wants to make reference to an authority to support a point?  otherwise, all that matters is the quality and relevance of the legal arguments.  those factors are wholly unaffected by whether you attribute or don’t or whether you are the original author or not.  if you want more honesty, then every brief should just add a footnote that says something like:

“The undersigned is not necessarily the original author of all or any of the contents of this brief, but takes full responsibility for the accuracy and relevance of all of its contents.  The undersigned did not always bother to note original sources of portions copied from other sources, because he deemed it unnecessary and his client did not want to pay for the extra effort involved in doing so.  Where the undersigned desired to support his arguments with references to others, he did so.”

By plagiarism? on 2011 04 08, 2:32 pm CDT

Use of a source is, in fact, asserting the truth of an “authoritative” source.

By Jim on 2011 04 08, 2:43 pm CDT

Comment removed by moderator.

By Blog It on 2011 04 12, 4:18 pm CDT

You mean wikipedia doesn’t constitute binding authority?  Oh well, there goes my legal strategy.

By Authority on 2011 04 13, 7:44 am CDT