Thursday, May 16, 2024

Persuasion: How is Writing a Legal Brief Similar to Selling a Timeshare?

There is no obvious direct similarity between writing a legal brief and selling a timeshare. A legal brief is a document prepared by lawyers to strategically explain the facts, legal arguments, and reasoning behind their position in a court case. On the other hand, selling a timeshare involves sales tactics and presentations to convince potential buyers to purchase a vacation property ownership interest. They seem like two entirely different activities with little in common. However, the mindsets of the lawyer and timeshare seller share similarities. Both use the same principles and techniques. The art of strategic persuasion in legal brief writing can be illustrated by comparison to timeshare sales as a framework for discussion.

The Purpose of Persuasion:

The primary goal of writing a legal brief and selling a timeshare is to persuade the audience. In the case of a legal brief, the writer aims to convince the judge or court to rule in favor of their client. This requires presenting a compelling argument supported by legal precedents, laws, and facts. A timeshare salesperson's goal is to persuade potential buyers. They want the buyers to purchase a shared ownership in a vacation property. They must highlight the benefits. Equally important, they must address concerns. They must create a perception that shows the value of the timeshare while also addressing any potential concerns the buyer may have, thus instilling confidence in the buyer's decision. A judge who aims to make the best decisions under the circumstances considers both sides of the argument. Lawyers must recognize that most decisions that judges make can go either way.

Structuring the Argument:

Both legal briefs and timeshare sales rely on a clear, organized structure. Good structure is an essential key to persuasive writing. A legal brief has an introduction that sets the stage. It has a statement of facts, a detailed argument, and a conclusion. The conclusion summarizes the key points and the desired outcome. Likewise, a timeshare sales pitch often starts with an introduction to build rapport. Then, it presents the benefits followed by a section addressing potential objections. Finally, it has a closing that seeks to secure the sale. This plan helps guide the audience through the argument. It leads them to the desired action.

Understanding the Audience:

Tailoring the message to the specific audience is crucial in both legal brief writing and timeshare sales. A legal brief must consider the court's past rulings. It must also consider its legal philosophy and procedural preferences. The brief must use this information to craft an argument that resonates with the judge. A timeshare salesperson must do the same. They must understand the buyers' needs, lifestyles, and concerns to customize their pitch well. They can do this by showing a deep understanding of the audience. It will help them build credibility and trust.

Emotional Appeal and Evidence:

While legal briefs primarily rely on logic and law, they can also leverage the power of empathy when appropriate. By evoking sympathy for the client or highlighting an injustice, a legal brief can effectively appeal to the court's sense of fairness. In timeshare sales, the use of emotional appeals is more pronounced. These pitches often paint a vivid picture of luxurious vacations and the creation of lifelong memories, tapping into the buyer's emotional desires. However, it's crucial to note that both legal briefs and timeshare pitches should back their claims with solid evidence. Legal briefs often cite past cases and laws, while timeshare sales may use testimonials and data to enhance their credibility.

Addressing Counterarguments:

Addressing counterarguments is not just a necessary part of legal brief writing and timeshare sales, it's a sign of mastery. A well-crafted legal brief acknowledges and counters potential weaknesses with strong legal reasoning. Similarly, a skilled timeshare salesperson is prepared to address common objections and concerns. This direct approach not only demonstrates the writer or salesperson's expertise, but also instills confidence in the audience, assuring them that all aspects have been thoroughly considered.

Conclusion:

The contexts and stakes differ a lot. But, writing a legal brief and selling a timeshare share some basic persuasion principles. Both need a clear audience understanding. They need a clear argument. It requires strategic evidence and emotion. They also need the skill to expect and address counterarguments. By mastering these techniques, legal brief writers can craft compelling arguments. They persuade judges, just as timeshare salespeople convince buyers to make a purchase. Ultimately, persuasion is at the heart of both. It shows the importance of good communication in achieving goals.

Wednesday, May 1, 2024

Unleashing the Power of AI to Write Legal Briefs Is Easier than You Might Think.

The adage "garbage in - garbage out" applies to AI chatbots. The first widely available chatbot, ChatGPT 3.5, was trained by scraping information from the web. This led to some strange conversations and produced a justifiably skeptical public attitude.  The lesson was clear. If you want sensible and accurate output from a chatbot, give it sensible and accurate information to work with.

After playing and experimenting with the more advanced  4.0 versions of ChatGPT and Anthropic's Claude, I was impressed by the chatbots' writing and reasoning abilities, and I decided to put AI's ability to write legal briefs to a real-world test. I extracted a motion to dismiss from the federal courts to use as an example.   

Most motions and briefs in federal courts are conveniently available online through PACER. I first located a promising published opinion and backtracked the corresponding district court docket for a specific motion and brief. 

Whalen v. Stryker Corp., 783 F. Supp. 2d 977 (2011) involved a 12(b)(6) motion to dismiss by reason of a statute of limitation bar. This required the interpretation and application of Kentucky's discovery rule. I was able to download the complaint, answer, and the defendant's brief from PACER.

I first extracted the District Court's statement of facts of the case and created a text file.

Next, I extracted the defendant's MTD/SOL argument (there were other issues that I omitted) and created a text file.

Then, I created two legal authority files.. (1) A basic statement of the standard for a Rule 12(b)(6) motion, and (2) Kentucky authority on the SOL discovery rule, consisting of the statute and pertinent quotes from four Kentucky Supreme Court opinions.

Finally, I used the following chatbot prompt:

PROMPT

Assume the role of a senior litigation attorney. You have filed a civil products liability lawsuit in a Kentucky court seeking to recover damages suffered  by your client, the plaintiff, from an implanted "pain pump."

The defendant's attorney has filed a motion to dismiss your complaint based on a claim that the plaintiff's court case was not filed within the one-year statute of limitations.

1. A full description of the facts of the case is contained in an attached text file.
2. Attached is a text file describing the legal standard for motions to dismiss for failure to state a claim.
3. Attached is a text file describing the defendant's legal argument to support the motion to dismiss.
4. I have attached a text file describing Kentucky law regarding the start date for a cause of action in relation to the statute of limitations.

<TASK> Please write a comprehensive, persuasive, and professional legal argument explaining why the court should deny the defendant's motion to dismiss.

Here is the resulting output from Caude 4.0.

MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant Stryker Corporation's ("Stryker") motion to dismiss should be denied because Plaintiff Cheryl Whalen has properly stated a claim upon which relief can be granted. The Complaint was timely filed within one year of when Ms. Whalen discovered, or in the exercise of reasonable diligence should have discovered, both her injury and that it may have been caused by Stryker's conduct. The discovery rule tolled the statute of limitations until at least November 13, 2009 when the FDA first publicly revealed a potential association between pain pumps and chondrolysis. Ms. Whalen filed suit on November 11, 2010, within the one-year limitations period.  

Furthermore, even if this Court finds that Ms. Whalen should have discovered her claim earlier through reasonable diligence, Stryker's fraudulent concealment of the risks associated with its pain pumps prevents it from asserting a limitations defense. For these reasons, explained further below, Stryker's motion must be denied.

II. ARGUMENT 

A. The Discovery Rule Tolled the Limitations Period Until November 2009

Under Kentucky's discovery rule, a cause of action does not accrue until the plaintiff discovers or reasonably should have discovered (1) an injury and (2) that the injury may have been caused by the defendant's conduct. Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010). Here, Ms. Whalen has alleged that she was not aware, nor could she have reasonably discovered through the exercise of reasonable diligence, that she had been injured by the Stryker pain pump until the FDA published its safety bulletin in November 2009 first revealing a potential link between pain pumps and chondrolysis. Compl. ¶ 19.

At the motion to dismiss stage, the Court must accept these allegations as true and view them in the light most favorable to Ms. Whalen. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). A Rule 12(b)(6) motion may only be granted if the facts alleged definitively establish that the claim is untimely. Tomlinson v. Siehl, 459 S.W.2d 166, 167-68 (Ky. Ct. App. 1970). Stryker cannot meet this high burden.

Contrary to Stryker's arguments, the Complaint does not establish that Ms. Whalen should have discovered her claim earlier than November 2009 merely because she continued to have shoulder problems and seek treatment. Under Kentucky law, a patient's mere knowledge of an undesired medical outcome does not necessarily trigger the limitations clock, as the patient may reasonably attribute it to an unfortunate result of proficient care rather than negligence or a defective product, particularly given their lack of medical expertise. Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005).  

Here, the Complaint alleges that the first public disclosure of a potential association between pain pumps and chondrolysis did not occur until the FDA's November 2009 bulletin. Compl. ¶ 19. Prior to that time, Ms. Whalen, a layperson, had no reason to suspect that her continuing shoulder problems were the result of a defect in Stryker's medical device as opposed to an unavoidable surgical complication. Even if some inaccessible, highly technical medical literature hinted at a theoretical risk, that is not the type of knowledge that a patient can be expected to glean through "reasonable diligence." See, e.g., Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky. 1979) (discovery rule protects plaintiffs in latent injury cases caused by exposure to harmful products). At minimum, it is a question of fact for the jury whether Ms. Whalen acted reasonably under the circumstances. See Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712-13 (Ky. 2000).

Accepting the Complaint's allegations as true, as the Court must at this stage, the discovery rule tolled the statute of limitations until at least November 2009. Because Ms. Whalen filed suit in November 2010, her claims are timely.

B. Fraudulent Concealment Estops Stryker From Asserting a Limitations Defense

Even if the discovery rule did not apply, Stryker would be estopped from asserting a limitations defense based on the doctrine of fraudulent concealment. The Complaint alleges that Stryker knew or should have known about the link between its pain pumps and chondrolysis based on a "wealth of scientific information," yet concealed this risk while continuing to promote the pumps' use. Compl. ¶¶ 12, 20. If proven, these facts would establish the elements of fraudulent concealment: (1) Ms. Whalen's lack of knowledge of the facts giving rise to her claim; (2) her inability to obtain that knowledge by reasonable diligence; (3) Stryker's actions in concealing a known risk; and (4) Ms. Whalen's detrimental, reasonable reliance on Stryker's conduct. See Fluke, 306 S.W.3d at 62.

The self-serving argument that Stryker could not have concealed this risk because some "wealth of scientific information" was publicly available, Def.'s Mem. at 5, turns the Complaint's allegations on their head. Clearly, if Stryker was aware of this "wealth" of troubling data, as the Complaint alleges, it was in the best position to appreciate the risk and had a duty to disclose it rather than conceal it. It cannot avoid responsibility by arguing, in effect, that Ms. Whalen should have discovered what Stryker itself failed to disclose. These are quintessential factual issues not properly resolved on a motion to dismiss.

III. CONCLUSION

For the foregoing reasons, Stryker has failed to show that Ms. Whalen's claims are definitively time-barred on the face of the Complaint. The discovery rule and fraudulent concealment doctrine preclude dismissal based on the statute of limitations at this early pleading stage. The Court should, therefore, deny Stryker's motion to dismiss in its entirety.


Thursday, April 25, 2024

Artificial Intelligence and Legal Self-help

"AI is not the future expectation; it is the present reality."

The impact of artificial intelligence (AI) is reshaping the legal landscape, especially in the realm of pro se litigation. The demand for affordable legal services often exceeds the public's ability to pay. This disparity is where AI's potential shines, offering a solution to those who may be forced into court but lack the means to hire a lawyer.

"The justice gap—the large difference between the number of people who want or need legal assistance and the number who receive it—is widely perceived as a failure of the United States legal system to provide equal justice under the law. Involuntary self-representation is especially prevalent in civil cases: no right to counsel exists for civil litigants, and, because most low-to-moderate-income families and individuals cannot afford legal services, approximately three out of every five people in civil cases go to court with no lawyer."

How Should Legal Ethics Rules Apply When Artificial Intelligence Assists Pro Se Litigants?

The notion that an intelligent layperson could navigate the complexities of the legal system with minimal guidance and research assistance was naive. As Nolo Press has shown us, catering to the legal self-help market is a viable business plan. Yet, the intricacies of legal thinking, the nuances of courtroom procedures, and the pitfalls of pre-trial processes have proven to be formidable challenges for even the most determined and well-informed non-lawyers. A pro se litigant taking on a jury trial is often a recipe for disaster, as they find themselves outmatched and overwhelmed by the legal system's labyrinthine workings.

"The potential of AI to empower pro se litigants is immense. As AI continues to advance, it will soon be able to generate high-quality written motions and briefs. This development will provide non-lawyers with a powerful tool for pursuing equity and leveling the playing field in the legal system." 

The Promise and Peril of AI Legal Services to Equalize Justice

Beyond simplifying documentation, AI can also answer legal questions and offer assistance at low costs. Self-help chatbots empower low-income individuals to take their civil issues to court by providing immediate legal information about their specific case or situation. These chatbots are designed to advise clients about their rights, legal strategies, and procedures in civil court."

Can AI give me legal advice?

"NO." (not yet)  "AI can't give legal advice. It might give clear and confident-sounding answers, but those answers are very often wrong. Following advice generated by AI may lead to mistakes in your case."

Artificial Intelligence as a Legal Help Tool

The potential impact of AI on pro se litigation is substantial. AI-powered tools will enable pro se litigants to present their cases more effectively and efficiently by analyzing legal precedents and crafting persuasive arguments. The days of struggling to decipher legal jargon and stumbling through procedural minefields may soon be a thing of the past as AI guides non-lawyers through the intricacies of the legal system.

"There is a crisis currently within the American justice system, a crisis in access to justice. Under the current approach, there are not enough lawyers to go around. Reform is needed to make the justice system more accessible. Incorporating artificial intelligence (“AI”) may be at least part of the solution. Recent developments in AI have flooded news outlets since systems like ChatGPT became available to the public. These systems have allowed students and organizations to achieve new levels of productivity and creativity. With this, it is still important to note that these systems have significant drawbacks to consider as they are still in their infancy stages."

AI & Pro Bono

The integration of AI into pro se litigation has the potential to transform the justice system. By offering affordable, user-friendly legal assistance, AI can help bridge the gap for those who have been historically underserved by the legal system. The prospect of a more equitable and accessible justice system, where justice is not determined by one's financial status, is a transformative and exciting possibility.

"AI’s broader potential to streamline legal services is also evident in the retail market segment. The inability of the vast majority of individuals and small businesses to secure legal representation due to lack of access and high cost is an acute problem often referred to as “the access to justice crisis.” It has profound implications for our society and its rule of law. AI is a game changer. "

How Artificial Intelligence Will Transform The Delivery Of Legal Services

As the legal industry grapples with the implications of AI, it is clear that clients, particularly those who cannot afford traditional legal representation, stand to be among the primary beneficiaries. The world of pro se litigation is ripe for massive innovation, and AI is poised to be the catalyst for change. As AI-powered tools become more sophisticated and user-friendly, we expect a surge in non-lawyers successfully navigating the legal system on their own terms.

While the rise of AI in pro se litigation is not without its challenges and potential pitfalls, the overall trajectory is one of hope and empowerment. As the legal landscape continues to evolve, we must embrace AI's transformative potential and work to distribute its benefits fairly. The future of pro se litigation is bright, and AI will undoubtedly play a pivotal role in shaping that future.

Wednesday, April 24, 2024

85-second AI task description for busy lawyers - Merging an Answer with a Complaint


85-second AI task description for busy lawyers - Merging an Answer with a Complaint

This video presents a nifty hack for lawyers who must match up a defendant's answers with the complaint's allegations . . . paragraph by paragraph. Since an answer rarely reproduces each of the complaint's allegations . . . it's not easy to see what's being admitted or denied,
We created a chatbot task to merge the admissions and denials of a defendant's answer with the corresponding allegations in the plaintiff's complaint. The output is a list with each allegation immediately followed by the defendant's answer.

This makes it much easier to identify the points of contention or agreement

First: Upload your Complaint and Answer PDF files to the Chatbot

Then: Enter the following chat prompt:

[Chatbot Task Prompt - BEGIN ]

The two attached PDF files are the plaintiff's complaint in a civil court case and the defendant's answer to the allegations of the complaint.

The purpose of this TASK is to combine the contents of the two files so that each of the plaintiff's allegations is immediately followed by the defendant's response to that allegation.

The text paragraphs in each document are numbered consecutively, and the numbered paragraphs in the answer correspond to the paragraph in the complaint with the same number.

The Defendant's answers either: 

1 admit the truth of the allegation, 
2 deny the allegation, 
3 admit part and deny part of the allegation, or 
4 claim lack of knowledge of the allegation.

STEP 1 - Extract the first paragraph from the plaintiff's complaint and add it to an output list with the identifier COMPLAINT, plus the paragraph number and the original text.

Step 2. Extract the corresponding numbered paragraph from the defendant's answer and add it to an output list with the identifier ANSWER, plus the paragraph number and the original text.

Repeat Steps 1 and 2 for each of the numbered paragraphs.

IGNORE page numbers.

IGNORE single lines of text that are not associated with numbered paragraphs.

If the document has a number sequence of 1 to 28 along the left margin, IGNORE those numbers.

temperature = 0

[END Task Prompt]

Sunday, April 21, 2024

Plagiarism, AI, and the practice of law

 Full Disclosure: I make no claim to originality. 

"What has been will be again,
what has been done will be done again;
there is nothing new under the sun.
Ecclesiastes 1:9

This has all happened before,
It will all happen again.

Plagiarism is the act of using someone else's words or ideas without giving them credit. It can be intentional, like buying a paper online, or unintentional, like forgetting to include a source in a bibliography. Plagiarism is a severe charge in academia and professional settings and can result in consequences such as failing grades, academic probation, or expulsion. This post does not discuss the issue of using copyrighted works, with or without attribution.

Summary - Ethical Implications of Plagiarism in Legal Filings:

Whether plagiarism is an ethical breach in the legal profession is complex. Unlike academic papers, legal documents aim to persuade and are valued for their effectiveness rather than originality. Here, efficiency is often prioritized over novelty.

Some argue that using unattributed language from other sources in legal filings can be inherently deceptive, violating ethical rules against dishonest conduct. Cases like Iowa Supreme Court v. Cannon highlight the seriousness of these violations, describing extensive copying without attribution as "misrepresentation."

Conversely, the New York City Bar Association's Ethics Opinion 2018-3 argues that legal briefs are not expected to reflect original thought to the same extent as academic papers. Here, the value lies in the arguments' persuasiveness, not originality.

The Distinct Nature of Legal Writing:

Legal writing is distinctly different from academic writing. It does not aim to add new ideas to the discourse but to effectively argue a client's position using existing laws and precedents. As such, using established arguments and language is common and often necessary.

Different Sources, Different Standards:

The ethical considerations of copying depend on the nature of the copied material. Using language from published articles without attribution is viewed more seriously than using boilerplate legal language from previous briefs. The former involves depriving original authors of credit for their creative and intellectual work, which can impact their professional recognition and advancement.

The Risks of Over-Reliance on Copied Material:

While copying itself is not always an ethical violation, excessive reliance on unattributed material can indicate a lack of professionalism. It may suggest incompetence or a lack of diligence, as the copied material may not perfectly align with the case specifics, leading potentially to legal and ethical repercussions.

Key Issues:

The rapid development of artificial intelligence drafting tools in the legal world adds many novel considerations to explore.

There are differing perspectives on whether plagiarism by lawyers in legal filings should be considered an ethical violation. These are a few key issues:

1. Whether copying language from other sources without attribution in legal briefs and filings is inherently deceptive and dishonest conduct that violates ethical rules like Rule 8.4(c), which prohibits "dishonesty, fraud, deceit or misrepresentation."

2. Is legal writing fundamentally different from academic writing in terms of expectations around originality and attribution? Failing to cite sources, even for paraphrased ideas, is considered plagiarism in academia. However, legal briefs aim to persuade rather than present original ideas. Lawyers are obligated to prioritize efficiency for the client over original expression.

3. Should copying without attribution from different sources be treated differently ethically? Failing to cite language from published articles and judicial opinions may be more problematic than recycling language from one's prior work or that of other attorneys. Recognition for their influence is essential to an academic's career advancement. The number of times an academic's works are cited is a measure of an academic's influence. An attorney's prior briefs are not typically a source of professional recognition. A published law review article is different from a court pleading.

4. Whether attorney plagiarism, even if not an automatic ethical violation, should still be discouraged as it can demonstrate a lack of competence and diligence if done sloppily without tailoring the copied material to the facts at hand. It may violate other ethical rules beyond 8.4(c).

5. How does an attorney's use of AI-generated text relate to the issues of lawyer ethics and plagiarism?

6. How does recognizing and respecting the rights of another human's original work compare to using the output from an artificial intelligence tool? What are the moral dimensions of using AI servants?  

While many courts and commentators have condemned extensive copying without attribution as plagiarism, there does not appear to be a clear consensus that it is always an ethical violation from a professional responsibility standpoint, at least not to the same degree as in academic writing — context matters. Efficiency is valued, and originality is not the ultimate goal. However, attribution is still a best practice and a way to avoid allegations of deception or incompetence. Careful use of limited quotes or paraphrasing key ideas, with citations when appropriate, threads the needle between efficiency and integrity. However, the verbatim copying of large sections of published works without attribution crosses an ethical line for many — the details and degree matter in making it rise to the level of an ethical breach.

Discussion:

1. Is copying language from other sources without attribution in legal briefs and filings inherently deceptive?

There are valid arguments on both sides of this issue, but I don't believe copying language without attribution in legal filings is inherently deceptive and an automatic violation of Rule 8.4(c) in all cases. 

Those who argue it is inherently deceptive point to cases like United States v. Sypher, No. 3:09-CR-00085, 2011 WL 579156, at *3 n.4. when District Judge Charles R. Simpson III denied the defendant's posttrial motions seeking a new trial, the court criticized her lawyer for writing a brief that "appear[ed] to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. . . [S]uch cutting and pasting, without attribution," warned Judge Simpson, "is plagiarism."

According to the The 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:

"Rule 8.4(c) of the Rules provides that "[a] lawyer or law firm shall not: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Although, as detailed below, courts have invoked Rule 8.4(c) to discipline lawyers who plagiarize in academic settings, we recognize that litigation filings serve a different purpose. Unlike academic papers (or writing samples), which purport to reflect the author's original work and analysis, legal briefs are submitted to present an argument on behalf of a client, and their value derives from their persuasiveness, not from their originality of thought or expression. A lawyer's signature on a brief is not a representation of authorship, much less of sole authorship, but rather a commitment to take responsibility for the contentions in the brief and an implied representation that the brief is not frivolous. For these reasons, we conclude that copying from other writings without attribution in a litigation filing is not per se deceptive and therefore is not a per se violation of Rule 8.4(c)."

Litigation filings aim to advocate for the client's position as effectively and efficiently as possible. Reusing tried-and-true arguments, even verbatim, can serve those goals. While citations are recommended, a brief is not held out as an original academic work such that the absence of citations is inherently deceptive."

That said, context matters greatly. Directly copying significant passages from published opinions and articles without attribution is more problematic than reusing boilerplate from one's prior briefs. And even where not deceptive, sloppy copying without tailoring the text can violate ethical duties of competence and diligence. 

Prudent attorneys should use unattributed copying carefully and thoughtfully. Paraphrasing key concepts in one's own words and limiting direct quotations is advisable. Including citations, especially to published works, avoids accusations of impropriety. But incidental copying alone is not an automatic ethics breach rising to the level of dishonesty and deceit.

The goals and conventions of legal advocacy mean plagiarism standards diverge somewhat from academia. However, attorneys must still balance efficiency against their duties of integrity and professionalism. Exercising reasonable discretion in the manner and degree of copying is essential.

2. Is legal writing fundamentally different from academic writing in terms of expectations around originality and attribution?

Yes, legal writing fundamentally differs from academic writing in terms of expectations of originality and attribution. The core purpose and audience for each type of writing are distinct, leading to different conventions.

Academic writing, such as scholarly articles and student papers, is designed to contribute original ideas, insights, and analysis to the collective body of knowledge on a topic. Proper attribution is essential to give credit to other scholars' work that the writer is building upon. Presenting others' ideas as one's own is considered plagiarism. Originality is highly prized.

In contrast, the goal of legal writing in litigation filings is to persuade the court to rule in favor of one's client. Judges are not looking for original ideas. Indeed, they are mainly interested in what other judges have said on an issue. Lawyers provide clear and compelling arguments for why the law supports the advocated outcome without distorting what appellate courts have said. Citing, quoting, and paraphrasing precedents balance useful explanation and argumentation against injecting confusion with unnecessary details.

Efficiency and effectiveness are key considerations. Clients prefer to avoid paying for attorneys to reinvent the wheel. Reusing arguments that have succeeded before, whether from the attorney's prior briefs or exemplar motions drafted by others, is an established practice. Even judges recycle language from briefs in their opinions. 

Some unique features of legal writing include:

- There is no expectation that a brief represents solely the original work of the signing attorney rather than a collaborative effort.
- Frequent use of boilerplate language and accepted legal terms of art.
- Excerpting key statutory and rule provisions, often without quotation marks.
- Heavy reliance on legal precedent, which necessitates restating courts' prior reasoning.
- Use of standard forms and templates for routine filings.

So, while in academia, copying a sentence without putting it in quotes and citing the source would be plagiarism, in legal briefs, it may not raise an eyebrow, especially if the source is another brief rather than a treatise or article. That doesn't make extensive copying a best practice, as courts have criticized it as sloppy, misleading, or sanctionable. Be careful, and limit the use of unattributed quotes, and avoid wholesale copying.

However, the fundamental difference is that legal writing is more accepting of copying to achieve a functional purpose efficiently, whereas academic writing demands original analysis and scrupulous attribution to reflect individual contributions to scholarship honestly. The plagiarism standards reasonably differ between the two contexts.

3. Should copying without attribution from different sources be treated differently from an ethical perspective? Citing language from published articles and judicial opinions seems more problematic than recycling language from one's prior work or that of other attorneys. 

The type of source material being copied without attribution is an essential factor in assessing whether the practice is unethical from a professional responsibility standpoint. There are stronger arguments that copying published works without citation is deceptive and unethical than recycling language from practitioners' prior briefing.

When an attorney copies text from a treatise, law review article, or other published secondary source without citing that source, there is a colorable argument that such conduct is dishonest and prejudicial to the original author. Legal scholars and analysts publish their works not just for direct compensation from the publisher but also to spread their ideas and gain recognition as thought leaders. Being cited in briefs and judicial opinions measures the influence and impact of their scholarship. 

If their published analyses are copied into briefs without attribution, the original authors may be deprived of that recognition. The court and opposing counsel will be unaware of the provenance of those legal arguments and unable to acknowledge the scholar's contribution, even if they find it persuasive. Over time, uncited copying of published works could rob deserving authors of the reputational credit and influence they have earned while diminishing the brief's perceived originality and integrity.

Extensively quoting judicial opinions without citing them raises additional systemic concerns beyond harm to individual judges. Attorneys have a duty to bring relevant caselaw to the court's attention so it can assess the weight of authority and make fully informed decisions. Hiding the source of statements of law by omitting citations to prior opinions could allow inconsistent or aberrant rulings to propagate unchecked. 

In contrast, copying portions of briefs previously filed by the attorney or others at their firm implicates less pressing ethical concerns. The client in the prior matter received the full benefit of that original work. Unlike treatise authors, brief writers are directly compensated by their clients at the time rather than relying on reputational credit.

However, judicial opinions and secondary sources generally present the strongest case for ethical impropriety in unattributed copying. The countervailing considerations of author recognition, systemic integrity, and intellectual property lessen with prior briefs, especially if from the same firm. 

Ethically, best practices remain to use direct quotations sparingly, paraphrase concepts in one's own words where possible while citing sources, and avoid verbatim copying of more than a couple paragraphs, even from briefs, without attribution. A measured, sparing approach to copying strikes the best balance between efficiency and integrity. However, as a matter of degree, failing to cite published scholarship and caselaw is the most indefensible from an ethics perspective.

4. Even if not an automatic ethical violation, should attorney plagiarism be discouraged?

Absolutely. Even if it does not always rise to the level of an ethics violation under Rule 8.4(c) 's prohibition on dishonesty and deceit, attorney plagiarism should still be strongly discouraged as a best practice. Excessive verbatim copying of source material without attribution in briefs can violate several ethical duties attorneys owe to their clients, the courts, and the profession. 

First and foremost, an attorney submitting a brief filled with conclusory statements of law or boilerplate analysis copied from other sources, without care to tailor the authorities and arguments to the specific facts and issues of the case, is likely not providing competent representation. The duty of competence under ABA Model Rule 1.1 and state equivalents requires the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." A cut-and-paste brief that fails to apply the law to the client's unique circumstances falls short of that standard. 

Mindlessly block-quoting treatises or opinions without examining how the principles apply to the case also demonstrates a lack of reasonable diligence and competence in representing the client, violating Rule 1.3. Sloppy copying bespeaks an eleventh-hour rush job rather than the considered analysis and client-centered advocacy ethical rules demand.

Relatedly, a pasted-together, inapposite brief may become a frivolous filing if the attorney has yet to independently verify that the arguments are factually and legally supported for this case. Rule 3.1 bars asserting issues without a non-frivolous basis in law and fact. An attorney must refrain from delegating the core duty to assess the merits of a motion or opposition by uncritically copying others' writing.

Slipshod plagiarism also displays a troubling lack of candor to the tribunal under Rule 3.3. The court deserves better than a brief stitched together from mismatched pieces of other works without cohesive, case-specific crafting. Even if not subjectively intending to deceive, the attorney who lifts passages wholesale is impliedly misrepresenting the level of effort and skill put into the filing.

Finally, such conduct may violate the catch-all provision of Rule 8.4(d) prohibiting conduct prejudicial to the administration of justice. Plagiarism that produces a deficient, legally erroneous brief ill-suited to the case impairs the court's ability to make sound, efficient decisions. Even if not guilty of fraud, the lawyer has still disserved the client, the court, and the disciplinary system's goal of fostering competence.

So, while the degree of copying, intent to deceive, and nature of the source material all factor into whether plagiarism constitutes an ethical violation, it is inadvisable attorney conduct that warrants disapproval. Pasting a patchwork of prior authority without focused analysis is detrimental to clients and degrades trust in advocates and the legal system. Careful, contextual use of properly attributed sources is how to uphold the profession's ethical standards.

5. Is the use of AI-generated text plagiarism?

Using AI-generated text by attorneys raises some novel ethical considerations that overlap with the plagiarism analysis but also implicate distinct concerns. On one level, an attorney's use of AI drafting tools is just a more technologically advanced version of copying from prior sources. However, it also highlights the core duties of competence, candor, and independent professional judgment in new ways.

One threshold question is whether using AI-generated text without disclosure constitutes deception or misrepresentation under Rule 8.4(c). Is there an implied representation that a brief is the attorney's work such that passing off AI writing as one's own is dishonest? The answer may depend on how courts and clients perceive the technology. 

If AI is viewed as a sophisticated tool for attorneys to efficiently generate routine language akin to a form book or automated template, then disclosure may not be expected. However, non-disclosure could be misleading if AI is seen more as an independent source of legal analysis, such that the attorney appears to represent the AI's reasoning as their original thoughts.

The counterargument is that clients and courts only expect the attorney to endorse the final work product rather than vouch for its precise drafting method. Under this view, if the attorney carefully reviews and takes responsibility for the AI-generated text, ensuring it is accurate, applicable, and well-argued, then using AI is not inherently deceptive, even without disclosure. The result should matter more than the process.

However, even if it does not amount to misrepresentation, over-reliance on AI could still compromise an attorney's duties of competence and diligence under Rules 1.1 and 1.3. An attorney cannot unthinkingly cut and paste AI output without manually verifying that it correctly applies the law to the unique facts and issues of the case. The attorney must remain actively engaged to ensure the AI output accurately reflects key arguments and authorities. 

Rote copying AI-generated briefs without tailoring them to the case at hand could also yield frivolous or legally erroneous filings violating Rule 3.1. The attorney must still independently analyze whether the AI output is supported by a non-frivolous basis in law and fact for the specific matter. AI is not a panacea absolving the attorney of the duty to exercise professional judgment.

Overdependence on AI violates Rule 2.1's directive that attorneys render candid, independent advice to clients. If an AI brief is generated without meaningful attorney review, it may not reflect the attorney's professional judgment and best counsel. An attorney cannot delegate the core functions of legal analysis and client-centered advocacy to AI.

6. There are significant moral and philosophical differences between using the original work of a human author versus AI-generated text when it comes to plagiarism. 

A core element of why plagiarism is unethical is that it fails to give credit and respect to the original human creator of the work. When we use someone else's writing or ideas without attribution, we steal the fruits of their mental labor and creative expression. There's a strong argument that humans have a fundamental right to recognition for their original intellectual contributions. To copy it and pass it off as one's own violates the autonomy and dignity of the human author.

Moreover, uncredited copying of human work can cause tangible harm by depriving the original author of the reputational benefit and influence they deserve. For example, a scholar whose analysis is used in legal briefs without citation loses out on the professional esteem, recognition, and career advancement that would flow from acknowledging their impact.

In contrast, the moral calculus is murkier with AI-generated text. Artificial intelligence does not have any claim to autonomy or originality. In one sense, generative AI is systematic plagiarism and paraphrasing. No sentient being is harmed or disrespected if its work is copied without credit.

There is still an obligation to disclose the use of AI, not out of respect for the AI itself, but for transparency to the audience. People may feel deceived if they falsely assume writing is the original work of the human presenting it when AI generates it. There could be a "right to know" if a brief or article was written by a machine, even if the machine itself does not have moral rights.

However, if we view AI as a tool that attorneys and authors use to generate writing more efficiently, then the need for disclosure is ambiguous. We do not expect a disclaimer every time a word processor with grammar and style assistance is used. With more advanced AI, the line between tool and autonomous originator blurs.

Arguably, as long as the human author carefully reviews, edits, and takes ultimate responsibility for the AI-generated text, they are making it their own original work in a meaningful sense. AI is a cognitive aid that helps produce writing, but humans must still apply significant judgment and editorial discretion.

That said, the human vs. AI distinction does matter for plagiarism on a gut level of ethics and social mores, even if it does not always rise to concrete harm. Copying the work of a feeling, thinking humans without crediting them feels viscerally wrong in a way that utilizing AI text does not. We intuit the human author's moral desert for recognition.

Best practices still require disclosure of the use of AI in generating text presented as one's own out of respect for the audience, if not the AI. But it occupies a different, more ambiguous moral terrain than copying a human's work. The offense to dignity and desert is more attenuated.

Ethically, using "AI servants" implicates fundamental questions of autonomy and moral status that we are only beginning to grapple with as a society. The ethics are far from settled. We can generally utilize AI-generated text with a clearer conscience than uncredited human-written material as long as we are transparent and take ultimate responsibility for the output. The key is to use AI as an aid but not abdicate human judgment and discretion.

Appropriately used as a drafting aid, AI can be an ethical, efficient tool for attorneys. But it cannot substitute for an attorney's professional responsibilities to provide competent, well-reasoned representation. Attorneys must remain hands-on to review, refine, and take responsibility for AI-assisted work product. Proactively informing clients that AI is being utilized may be advisable for transparency.

As with plagiarism, AI can be a valuable resource if used thoughtfully but an unethical crutch if relied on recklessly. The fundamental duties of diligence, competence, and independent judgment remain paramount. Attorneys should embrace technological aids as complements to, not replacements for, their professional obligations. Keeping AI use within these ethical boundaries is critical.

Conclusion

The issue of plagiarism in legal practice does not have a one-size-fits-all answer. Legal professionals must balance efficiency with integrity, use citations appropriately, and tailor arguments to the specific context of each case. While the standards for plagiarism in legal settings differ from those in academic ones, maintaining honesty and professionalism remains paramount.