Corporate & Securities Law

Contract Drafting and Plagiarism

By Ken Adams

There’s been quite a bit of blogosphere chatter recently about lawyers and plagiarism. The most recent salvo is this post by Peter Friedman, who teaches legal analysis and writing at Case Western Reserve University School of Law.

In my cloistered way, I pay real attention only when the discussion touches on contract drafting. And here’s what Peter had to say on that score:

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief?s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn?t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers? briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it?s no sin. That?s the point.

I added the following comment to Peter’s post:

To discuss contract drafting in the same context as briefs and opinions is to compare apples and oranges. In mainstream drafting, copying-and-pasting from other contracts is certainly no sin. But that?s not because unauthorized copying is OK. Instead, it?s because everyone is copying from a common pool of contract verbiage that they tweak to suit their own purposes. It can?t be attributed to a single source, so there?s no one to provide consent for copying. And no one is in a position to claim that they?ve been harmed by the copying.

But if you invest resources in preparing contract language that improves on the dysfunction of mainstream drafting, that work would be entitled to copyright protection. And you?d likely be none too pleased if someone took the liberty of copying it wholesale.

I discuss these issues in my 2006 New York Law Journal article ?Copyright and the Contract Drafter.? A PDF copy is available at http://www.adamsdrafting.com/downloads/Copyright-NYLJ-8.23.06.pdf.

Full post as published by AdamsDrafting on August 22, 2010 (boomark / email).