Gerard Magliocca, writing at Concurring Opinions:
If I cited [someone else’s] brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus. If I did not cite the brief, though, then that would (or could) be plagiarism.
It would be an interesting bit of research to determine how many sentences are copied without attribution from the briefs of other attorneys. I suspect it happens often.
I don’t think it’s uncreative to cite another lawyer’s brief. Legal writing is a game of cites. If anything, an uncited thought may raise questions rather than project creativity.
The real creativity in legal advocacy, as far as I have learned in law school, working as a litigation paralegal and reading far too much legal writing for “pleasure,” is in the optimal juxtaposition, creatively, of the cited facts and the thoughts of your forbears.
No one wants to see a newly minted physics professor work out the proof for E = MC2. The formula is there as a shortcut so others can build, creatively, upon the concepts for which it provides a shorthand.
After all, what judge prefers your lengthy version of an angle you could just as easily refer to with a short quote and a cite to a previous brief?
Whatever you think of this, a quick search turned up a bit of further reading on the issue and I’ve included a few links below. The question certainly isn’t settled, so I’m as interested as Mr. Magliocca in hearing other opinions.
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