Legal Writing Notebook: Liberating the Bride of Frankenmemo.

Byline: Karin Ciano

A late hour in a dark office. A sleep-deprived lawyer squints at a glowing flatscreen, her keyboard pattering: tappity tap tap tap. Ctrl+C. Ctrl+V. Tap tappity tap. Ctrl+C. Ctrl+V. A quick scroll, hit Send, a distant lightning flash and boom of thunder the monster has been unleashed.

I refer to the Frankenmemo, an ungainly document assembled from the cut-and-pasted writing of others: an introduction extracted from a previous brief, grafted onto a judge's favorite statement of the procedural rule, stitched to expository paragraphs beloved of partners past. Whether it's the press of time, the lateness of the hour, the inability to digest unfamiliar material, the fear of getting a detail wrong, or simply a lack of confidence sooner or later, we are all tempted to say "I do" to Frankenmemo.

Girlfriend, it's time to get a divorce.

The main reason is that cut-and-paste writing is not effective. Think about it. When you speak with someone, can you tell whether they're paying attention to you or are distracted by something else? Cut-and-paste writing always sounds like the writer is distracted. When the writer tunes out, the reader will too.

Another reason is plagiarism. "Plagiarism in legal writing?" you ask. "That's a thing now?" Yes actually. It's always been a thing for law professors and students. Now, the online tools used to sniff out fake student papers (such as iThenticate.com or Turnitin.com) are widely available to opposing counsel and the court.

Guess what happens? In egregious cases (that is, pages' worth of verbatim lifting from a source that's obviously not the writer, sometimes accompanied by fee requests and protestations to the court that the writing is in fact their own) lawyers have been called out in court for copying without attribution. See, e.g., Lohan v. Perez, 924 F. Supp. 2d 447, 458 (E.D.N.Y. 2013); U.S. v. Sypher, No. 3:09-CR-00085, slip op. at n.4 (W.D. Ky. Feb. 9, 2011); Attorney Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 759 (Iowa 2010); Venesevich v. Leonard, No. 1:07-CV-2118 (M.D. Pa. Dec. 19, 2008). Yes, brothers and sisters, our esteemed judges can actually tell when we're cutting and pasting sections of our brief from Wikipedia, and they don't like it any better than our teachers did.

But if Frankenmemo is to be avoided, is any copying is OK? That's a trickier question currently the subject of robust scholarly debate.1 It depends on the author, the context, the purpose of the document being...