From Kevin Underhill at Lowering the Bar, this post about the appellate brief from the Biglaw firm of O’Melveny & Myers representing former Enron CEO Jeffrey Skilling. Big law, big brief. The brief weights in at a whopping 239 pages and 58,922 words. Anybody want to guess at whether O & M charges by the word?
I’m sure the lawyers at O & M know lots of words, and want to use them all on behalf of their client. But there is one word that apparently escapes them: Brief.
Clients love it when briefs are long and contain lots of arguments. The more arguments, the better it must be as far as the client is concerned. They feel like they are really getting their monies worth, and leaving no stone unturned. But lawyers are supposed to know better.
The more words, pages and arguments, the more the strength of the appellant’s position is diluted. It sends a message to the appellate court that you don’t think you have a winning argument (and therefore have to throw in everything, including the kitchen sink), or you can’t state your argument clearly and concisely. Neither message works to the appellant’s benefit.
While Kevin Underhill has read the brief and says it’s actually quite good (I haven’t read the brief, and have no intention of doing so until Skilling’s people send me a check), he sums up the problem in far fewer words than Biglaw can mange: It’s just way too goddamn long. Nice touch.
And on the plagiarism front, Carolyn Elafont (by way of Volokh) bring us the saga of the bankruptcy brief submitted by lawyer Peter Cannon that was glommed wholesale from an article by some Morgan Lewis lawyers. And so he’s sanctioned by the judge for having lifted it without attribution.
As Carolyn correctly notes, isn’t plagiarism something of the touchstone of the law? The first thing we learn in law school is not to reinvent the wheel. They we’re taught our first Latin phrase, stare decisis. I can’t recall anyone mentioning anything about “giving credit where credit is due.”
Enough kidding around. What happened here was clearly over the top by any measure. If nothing else, it was a fraud on the client who thought he was paying for his lawyer to produce work, not copy over someone else’s. But if somebody had already done an excellent job dealing with an issue, and it addresses the identical issue presented in your case, what purpose is served by ignoring the existence of the earlier work and starting from scratch? None, obviously, but the Judge’s point is not that Cannon should have ignored the Morgan Lewis article, but dealt with it honestly and not attempted to take credit for another lawyer’s work.
I have a hard time imagining that such a massive theft would actually work for Cannon, though Carolyn’s description of how the judge came upon the plagiarism suggests that it worked very well. One would think that there would be substantial reworking to address the particulars of the individual case, particularly since there was so much time available because all the legal work had already been done.
But here’s the question: Had Cannon put a quotation mark at the beginning and another at the end, would that have sufficed?
I’m sure the lawyers at O & M know lots of words, and want to use them all on behalf of their client. But there is one word that apparently escapes them: Brief.
Clients love it when briefs are long and contain lots of arguments. The more arguments, the better it must be as far as the client is concerned. They feel like they are really getting their monies worth, and leaving no stone unturned. But lawyers are supposed to know better.
The more words, pages and arguments, the more the strength of the appellant’s position is diluted. It sends a message to the appellate court that you don’t think you have a winning argument (and therefore have to throw in everything, including the kitchen sink), or you can’t state your argument clearly and concisely. Neither message works to the appellant’s benefit.
While Kevin Underhill has read the brief and says it’s actually quite good (I haven’t read the brief, and have no intention of doing so until Skilling’s people send me a check), he sums up the problem in far fewer words than Biglaw can mange: It’s just way too goddamn long. Nice touch.
And on the plagiarism front, Carolyn Elafont (by way of Volokh) bring us the saga of the bankruptcy brief submitted by lawyer Peter Cannon that was glommed wholesale from an article by some Morgan Lewis lawyers. And so he’s sanctioned by the judge for having lifted it without attribution.
As Carolyn correctly notes, isn’t plagiarism something of the touchstone of the law? The first thing we learn in law school is not to reinvent the wheel. They we’re taught our first Latin phrase, stare decisis. I can’t recall anyone mentioning anything about “giving credit where credit is due.”
Enough kidding around. What happened here was clearly over the top by any measure. If nothing else, it was a fraud on the client who thought he was paying for his lawyer to produce work, not copy over someone else’s. But if somebody had already done an excellent job dealing with an issue, and it addresses the identical issue presented in your case, what purpose is served by ignoring the existence of the earlier work and starting from scratch? None, obviously, but the Judge’s point is not that Cannon should have ignored the Morgan Lewis article, but dealt with it honestly and not attempted to take credit for another lawyer’s work.
I have a hard time imagining that such a massive theft would actually work for Cannon, though Carolyn’s description of how the judge came upon the plagiarism suggests that it worked very well. One would think that there would be substantial reworking to address the particulars of the individual case, particularly since there was so much time available because all the legal work had already been done.
But here’s the question: Had Cannon put a quotation mark at the beginning and another at the end, would that have sufficed?
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