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Stung by the reversal of their $145 billion judgment against the tobacco industry, Miami attorneys Susan and Stanley M. Rosenblatt have fired back with an indictment of the appellate panel that did the reversing. “Over 86 percent of the Panel Opinion was authored by the tobacco industry,” the Rosenblatts charge in a July 16 motion asking that the panel of the Florida Third District Court of Appeal reconsider its decision, or that the entire court hear the case en banc. Some — but not all — authorities would give bad marks to an appellate court that adopts as its own passages taken from a partisan brief. But experts say there is little support for the Rosenblatts’ argument that “judicial plagiarism” is by itself ground for reversal. Furthermore, a comparison of the panel opinion with tobacco industry briefs suggests that the Rosenblatts may have overstated the extent of the copying. The May 21 decision written by, or at least attributed to, Judge David M. Gersten, was a major victory for the tobacco industry. Liggett Group Inc. v. Engle, No. 3D00-3400. Gerston gave several reasons for overturning the landmark verdict the Rosenblatts had obtained on behalf of a class consisting of some 700,000 Florida smokers. Some of the reasons stemmed from the way the two-year trial had played out. Gerston wrote that Stanley Rosenblatt “caused irreparable prejudice” by “improper race-based appeals for nullification” and inciting the jury “to disregard the law because the defendants are tobacco companies.” More significantly, Gerston wrote that the trial was misconceived from the beginning, because the class was unworkably large and diverse and because the trial judge had allowed the jury to assess a global punitive damages award — the $145 billion — before deciding whether the tobacco companies were liable for injuries to class members other than a few named plaintiffs. “Judicial plagiarism, in whatever form it takes, is wrong,” the Rosenblatts declare in their motion for rehearing. They cite an article that condemns even the time-honored practice of judges’ putting their names on opinions written by their clerks. The article, “Judicial Plagiarism,” 18 Cardozo L. Rev. 1253 (1996), was by law student Jaime S. Dursht. To Professor Steven Lubet of Northwestern University School of Law, the author of a treatise on judicial ethics, the issue is not really plagiarism at all. “There is no premium on originality in the legal system,” he said. It is not uncommon for courts to incorporate sections of briefs into their opinions, though probably not to the extent alleged by the Rosenblatts, he said. “The real issue is the appearance of impropriety when a court doesn’t seem to be doing its own work,” he said. “We want to know the court’s own thought processes because the whole purpose of a legal opinion is to educate the parties and the higher court about the reasons for a decision.” Professor Paul D. Carrington of Duke University Law School, who has also written on judicial ethics, agreed that plagiarism is troubling if it shows that the court hasn’t given independent thought to a case. He was not willing to reach that conclusion in the Engle case. “That judgment was surely doomed,” he said. “The punitive award was way too big.” Carrington said he has no objection to a court’s adopting language from a brief if the party has done an elegant job of framing the issues and summarizing the evidence. “That’s flattery, not cheating,” he said, adding that “plagiarism is generally a complaint made by the author.” The authors here — the tobacco companies and their attorneys — said they will not comment until the filing of their reply brief, which is due on Aug. 27. It seems unlikely, to put it mildly, that they will assert pride of authorship. The Rosenblatts point to several appellate cases condemning “cut and paste” decisions. Their motion does not say how many of the courts found the copycat opinion a ground for reversal. At least some of them have not. In Anderson v. Bessemer City, 470 U.S. 564 (1985), for instance, the Supreme Court wrote that “even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.” The Rosenblatts argue that the practice is worse when done by an appellate court. At The National Law Journal‘s request, iParadigms, a company that markets software to detect student plagiarism, compared the Engle opinion to two briefs claimed by the Rosenblatts to be major sources. According to founder John M. Barrie, the company’s software found that about 11 percent of the opinion had been lifted verbatim from two briefs. That could be an understatement. The software does not pick up even close paraphrases, Barrie said. In addition, Barrie had only the two main briefs. A side-by-side comparison of some passages seems to lend credence to the Rosenblatts’ charge that the court picked up much of the language verbatim. However, the specific instances of alleged plagiarism in the Rosenblatts’ motion often don’t distinguish between loose paraphrases and direct quotations. And they make some questionable accusations, in effect claiming plagiarism when the court lifted passages from its own prior decisions that had been quoted by the tobacco companies. There are indications that the court examined the many cases it cited in the same order as in the tobacco company briefs. Unpublished sources have been updated to published ones, for instance. On the other hand, the court’s opinion sometimes tracks the briefs so closely as to use quotation marks in exactly the same places, as when it refers to “plaintiff’s ‘experts.’”

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