Cut-and-paste is a laudable method for reducing transcription errors in copying citations and quotations. However, a problem arises when it is used to lift verbatim sections of a party’s arguments into a case decision.1 Stipulations and proposed orders from counsel for both parties might be enviable and practicable, but judgment and fact-finding are solely in the province of the court. This has been a long standing issue that has spanned technologies from shears and paste-pot to typewriters and computers, and which might culminate in a Turing Test for case law.2
Decisions are evidence of judicial thinking. Indeed, legal precedent has earned a “presumption of correctness” based on the “judge’s own considered conclusions” unless “clearly erroneous.”3 While the mechanics of judicial writing and the high volume of work invite repeating, recycling and restating findings of fact and conclusions of law,4 evidence showing a lack of “independent judgment” might reveal a due process violation.5
Some common objections to verbatim copying in judicial decisions include: (1) adoption of one party’s fact-finding ex parte; (2) no independent decision-making; (3) no notice, hearing or opportunity for objection by other party; (3) no evidence to support adopting findings; and (4) improper delegation of decision-making power to a party.6
In response, appellate decisions and scholarly literature have offered some useful indicia of “independent judgment”: (1) an oral pronouncement that reveals decision-making before inviting or adopting the proposals of parties; (2) citation of evidentiary support and legal principles for the court’s conclusions; (3) biases and advocacy of the parties filtered out in vetting the factual findings; and (4) a robust appellate review assuring fidelity to due process and statutory requirements for independent judicial reasoning.7
This article collects notable decisions and scholarly research concerning the legal and ethical issues associated with cut-and-paste decision-making.
CASES
Anderson v. Bessemer City, 470 U.S. 564, 571-573 (1985)
“We must deal at the outset with the Fourth Circuit’s suggestion that “close scrutiny of the record in this case [was] justified by the manner in which the opinion was prepared,” id., at 156 — that is, by the District Court’s adoption of petitioner’s proposed findings of fact and conclusions of law. The court recalled that the Fourth Circuit had on many occasions condemned the practice of announcing a decision and leaving it to the prevailing party to write the findings of fact and conclusions of law. See, e.g., Cuthbertson v. Biggers Bros., Inc., 702 F.2d 454 (1983); EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633 (1983); Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719 (1961). The court rejected petitioner’s contention that the procedure followed by the trial judge in this case was proper because the judge had given respondent an opportunity to object to the proposed findings and had not adopted petitioner’s findings verbatim. According to the court, the vice of the procedure lay in the trial court’s solicitation of findings after it had already announced its decision and in the court’s adoption of the “substance” of petitioner’s proposed findings.
We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. See, e.g., United States v. El Paso Natural Gas Co., 376 U. S. 651, 656-657 (1964); United States v. Marine Bancorporation, 418 U. S. 602, 615, n. 13 (1974). We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial — Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962). Nonetheless, our previous discussions of the subject suggest 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. United States v. Marine Bancorporation, supra, at 615, n. 13; United States v. El Paso Natural Gas Co., supra, at 656-657.
In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner’s counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner’s proposed findings: the findings it ultimately issued — and particularly the crucial findings regarding petitioner’s qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen — vary considerably in organization and content from those submitted by petitioner’s counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge’s own considered conclusions. There is no reason to subject those findings to a more stringent appellate review than is called for by the applicable rules.”
Andre v. Bendix Corp., 774 F.2d 786, 799-800 (7th Cir. 1985)
“Bendix’s second argument is that it is entitled to a new trial because the district court violated the requirements of Rule 52(a) of the Federal Rules of Civil Procedure by adopting wholesale Andre’s post-trial brief as its findings of fact and conclusions of law. We agree with Bendix’s conclusion, though not precisely for the reason it gives. . . . The district court here adopted verbatim approximately 54 out of 55 pages of Andre’s post-trial brief as its findings of fact. This includes footnotes, citations and spelling and typographical errors. One particularly noteworthy (and, we suspect, embarrassing) result of this wholesale adoption is that the district court cites throughout its analysis to numbered “Facts” which are not contained in its decision. See 584 F. Supp. at 1505-07. Andre had used that term in her post-trial brief to refer to her separate “Proposed Findings and Conclusions,” App. 121-28, which the district court did not adopt. The court neglected to take the trouble to key its analysis to Andre’s post-trial brief statement of facts which it had adopted (in lettered sections) as its findings of fact. On the other hand, Andre has pointed out some 94 places where the district court made changes in her post-trial brief before it adopted that as its findings and conclusions. See Supp. App. 42-45. These changes range from corrections of typographical errors to addition or deletion of whole paragraphs. The vast majority of the changes are deletions ranging from a few words to a few sentences. Given this large number of editorial alterations, we are at least certain that the district court read the post-trial brief before adopting it. Cf. Machlett Laboratories, Inc. v. Techny Industries, Inc., 665 F.2d at 797 & n.4 (vacating preliminary injunction where district court did not read proposed findings of fact it entered as its own). Our concern, therefore, is not so much with the manner in which the district court adopted the proposed findings, as with the adequacy of the findings which resulted from this adoption.”
Bright v. Westmoreland County, 380 F.3d 729, 731-32 (3d Cir.2004)
“We have held that the adoption of proposed findings of fact and conclusions of law supplied by prevailing parties after a bench trial, although disapproved of, is not in and of itself reason for reversal. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[E]ven when the trial judge adopts the findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.”); Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1215-16 (3d Cir.1993) (disapproving of the verbatim adoption of proposed findings of fact but acknowledging the rule announced in Anderson and noting that there was “no indication in the record that the district court was unfamiliar with the testimony or exhibits or that it was using the proposed findings as a crutch; if [there were such an indication] we might view the matter differently”). However, we made clear that the findings of fact adopted by the court must be the result of the trial judge’s independent judgment. Pa. Envtl. Def. Found.: (PEDF) v. Canon-McMillian Sch. Dist., 152 F.3d 228, 233 (3d Cir.1998) (citing with approval Odeco, Inc. v. Avondale Shipyards, Inc. 663 F.2d 650, 652-53 (5th Cir.1981)). “The central issue is whether the district court had made an independent judgment.” Id.
Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion. This fact, even standing alone, would be enough for us to distinguish the holdings in Anderson and Lansford-Coaldale. We agree with the Court of Appeals for the Fourth Circuit’s observation that: There is authority for the submission to the court of proposed findings of fact and conclusions of law by the attorneys for the opposing parties in a case, and the adoption of such of the proposed findings and conclusions as the judge may find to be proper…. But there is no authority in the federal courts that countenances the preparation of the opinion by the attorney for either side. That practice involves the failure of the trial judge to perform his judicial function. Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719, 725 (4th Cir.1961) (emphasis added).
Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.”
Chicopee Manufacturing Corp. v. Kendall Company, 288 F.2d 719, 724-725 (4th Cir. 1961)
“The manner in which the opinion of the District Judge was prepared in this case cannot be approved. There is authority for the submission to the court of proposed findings of fact and conclusions of law by the attorneys for the opposing parties in a case, and the adoption of such of the proposed findings and conclusions as the judge may find to be proper. See United States v. Crescent Amusement Co., 323 U.S. 173, 184, 65 S.Ct. 254, 89 L.Ed. 160; Saco-Lowell Shops v. Reynolds, 4 Cir., 141 F.2d 587, 589; Schilling v. Schweitzer-Cummings Co., 79 U.S.App.D.C. 20, 142 F.2d 82, 83; Simons v. Davidson Black Co., 9 Cir., 106 F.2d 518; O’Leary v. Liggett Drug Co., 6 Cir., 150 F.2d 656, 667. In South Carolina, we are told, under a practice that prevails widely in the trial courts of the state, the opinion is frequently prepared at the request of the judge by the attorney for the successful party. But there is no authority in the federal courts that countenances the preparation of the opinion by the attorney for either side. That practice involves the failure of the trial judge to perform his judicial function and when it occurs without notice to the opposing side, as in this case, it amounts to a denial of due process. In either event, a reversal of the judgment and a remand for further proceedings would be justified. In the pending case, however, the invalidity of the patent has been so clearly shown that the judgment will be reversed with directions to the District Judge to dismiss the bill of complaint.”
Clifford v. Klein, 463 A.2d 709, 713 (Me. 1983)
“The record before us in this case, similarly, provides no assurance that the judicial function was performed in an adequate manner. Not only did the trial justice solicit proposed findings from only one party, thereby depriving himself of the opportunity to weigh the views of counsel for both parties, but more importantly, in soliciting proposed findings from the prevailing party, the justice failed to give counsel for that party any indication of the rationale for his decision. This is not the type of case in which the basis for the justice’s decision was readily apparent. The evidence adduced at trial was extensive and in part conflicting. The proposed judgment drafted by counsel for the prevailing party attempted to review this testimony at length and in the process rejected selected portions of it. We believe it highly unlikely that counsel’s perception and portrayal of this testimony would have been identical to that of the presiding justice. The evidence adduced at trial was too extensive and too complex for counsel to have been able to divine the rationale supporting the decision of the court. It is therefore necessary to vacate the judgment and remand the cause for appropriate findings of fact and conclusions of law after a re-examination of the evidence in the light of the appropriate legal principles.”
Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357, 2013 SCC 30 (Canada)
“As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.”
Commonwealth v. Birdsong, 24 A.3d 319, 355 (Pa. 2011)(Saylor, J. dissenting)
“I cannot join the majority opinion in light of material differences with its rationale. Instead, I would remand for appropriate post-conviction review, and I write to the following. First, Appellant complains that, after multiple remands to obtain an adequate opinion from the post-conviction court, that court employed a near cut-and-paste approach from the Commonwealth’s brief on appeal. To my review, the opinion, at the very least, does test the limits of compliance with a PCRA [Post Conviction Relief Act] court’s duty to produce an independent analysis of post-conviction claims. See Commonwealth v. Williams, 557 Pa. 207, 224-25, 732 A.2d 1167, 1176 (1999); see also id, at 254-55, 732 A.2d at 1192-93 (Castille, J., concurring). For example, the first eight pages of the opinion are taken almost verbatim from the Commonwealth’s brief.”
Commonwealth v. Weiss, 986 A.2d 808, 816 n. 4 (Pa. 2009)
“We caution the PCRA [Post Conviction Relief Act] court on remand against over-reliance upon any party’s submissions as the basis for explaining its rulings. We generally discourage the practice of wholesale adoption of facts or law as presented by litigants. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999) (admonishing PCRA court against wholesale adoption of one advocate’s position at a critical stage of the proceedings; calling for autonomous judicial expression of reasons for decision); Id. at 1192 (opining that appellate review should not proceed until PCRA court files a proper opinion) (Castille, J., concurring). Moreover, a fact-finding court should support its determinations with sufficient explanations of the facts and law, including specific citations to the record for all evidence on which it relies, and to the legal authority on which it relies, to facilitate appellate review. Cf. Commonwealth v. Norris, 256 Pa.Super. 196, 389 A.2d 668 (1978).”
Cormier v. Carty, 408 N.E.2d 860, 862-863 (Mass. 1980)
“While the issue before us is one of first impression, the propriety of a trial court’s adopting findings of fact submitted by a party has been extensively discussed by the Federal courts, and we may look for guidance to decisions reached under the Federal rule on which our rule is based. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). We conclude that our rule serves to (1) insure the quality of a judge’s decision making process by requiring simultaneous articulation of the judge’s underlying reasoning; (2) assure the parties that their claims have been fully and fairly considered; and (3) inform an appellate court of the basis on which a decision has been reached. See Roberts v. Ross, 344 F.2d 747, 751-752 (3d Cir.1965). The practice followed by the judge in this case tends to defeat each of these three underlying purposes, and we do not condone it. “Findings and conclusions prepared ex post facto by counsel, even though signed by the judge, do not serve adequately the function contemplated by the rule.” Roberts v. Ross, supra.”
Cuyler v. Allstate Ins. Co., 643 S.E.2d 783, 785 (Ga. 2007)
“”Judges may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.” (Punctuation omitted.) Fuller v. Fuller, [279 Ga. 805, 806(1), 621 S.E.2d 419 (2005)] Commentary to Code of Judicial Conduct, Canon 3(B)(7). Furthermore, “[i]t is well established that the burden is on the party alleging error to show it by the record, and there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction.” (Punctuation omitted.) Toberman v. Larose Ltd. Partnership [ 281 Ga. App. 775, 780(2), 637 S.E.2d 158 (2006)]. Here, Cuyler chose not to include the transcript of the summary judgment hearing in the record and has not produced any evidence that the trial court did anything improper when it requested that Allstate’s counsel draft the proposed order. Accordingly, Cuyler has not overcome the presumption of regularity of the court’s proceedings nor otherwise supported his claim of error. See id.”
DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990)
“The judge accepted the “reasons set forth in E & W’s briefs” in the district court. Even if we had copies of these briefs (no one supplied them to us), they would be inadequate. A district judge could not photocopy a lawyer’s brief and issue it as an opinion. Briefs are argumentative, partisan submissions. Judges should evaluate briefs and produce a neutral conclusion, not repeat an advocate’s oratory. From time to time district judges extract portions of briefs and use them as the basis of opinions. We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own. E.g., Walton v. United Consumers Club, Inc., 786 F.2d 303, 313-14 (7th Cir.1986); In re X-Cel, Inc., 776 F.2d 130 (7th Cir.1985). Judicial adoption of an entire brief is worse. It withholds information about what arguments, in particular, the court found persuasive, and why it rejected contrary views. Unvarnished incorporation of a brief is a practice we hope to see no more.”
Finan v. Finan, 918 A.2d 910, 915-916 (Conn. 2007)
“There can be no doubt that verbatim adoption, from another source, of the fact section “invites error or sloppy analysis on the judge’s part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts [proffered] by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.” Grayson v. Grayson, 4 Conn. App. 275, 284, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987) (certification improvidently granted.). As this court has most recently reiterated, “a verbatim adoption of the findings proposed by a prevailing party is not a per se finding of a denial of a fair trial. . . . Instead, [t]he ultimate test as to the adequacy of [the] findings is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and whether they are supported by evidence.” (Citation omitted; internal quotation marks omitted.) In re Halle T., 96 Conn. App. 815, 825-26, 902 A.2d 670, cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006); see also MacCalmont v. MacCalmont, 6 Conn.App. 117, 118, 503 A.2d 624 (1986). We have rejected review that would give less weight to the court’s findings in these types of cases “because a conscientious appellate court will make such examination of the record as is necessary in every case in which it is claimed that the finding is not supported by the evidence.” Grayson v. Grayson, supra, at 285, 494 A.2d 576.”
Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1284 (7th Cir. 1977)
“[T]he district court adopted without change findings of fact and conclusions of law prepared by the defendant after the action was dismissed. A critical view of a challenged finding is appropriate where, as here, the findings of fact and conclusions of law of which it is a part were not the original product of a disinterested mind. Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285 (10th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 801, 42 L.Ed.2d 819 (1975); In re Las Colinas, Inc., 426 F.2d 1005 (1st Cir.1970); Roberts v. Ross, 344 F.2d 747 (3d Cir.1965); Louis Dreyfus et Cie. v. Panama Canal Co., 298 F.2d 733 (5th Cir.1962). See United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).”
Foster v. Bank of America Nat. Trust & Sav. Ass’n, 365 P.2d 313, 318 (Nev. 1961)
“Throughout their brief appellants complain bitterly of the “so-called” findings, of the “ex parte” findings, “self-serving” findings, “one-sided” proposals, of the fact that the defendants had drawn the findings and they had been signed by the court; that plaintiffs were denied the opportunity to object or propose counter-findings. Appellants’ complaints in this regard would have been in order under the old practice. Our present Rule 52(b) NRCP quoted in the margin now contemplates ex parte findings subject to the right of the other party to move to amend the same and departs radically from the old procedure.”
Gerenstein v. Williams, 723 N.Y.S.2d 255, 256-257 (N.Y. 2001)
“Initially, defendant contends that Supreme Court failed to comply with the provisions of CPLR 4213 inasmuch as it simply cited the proposed findings of fact submitted by plaintiff and, thus, failed to undertake an independent evaluation and analysis of the record. We disagree. Initially, we note that there is no way to determine whether Supreme Court adopted verbatim, as contended by defendant, plaintiff’s proposed findings of fact because the document complained of is not part of the record on appeal. Nevertheless, the mere adoption of a party’s proposed findings of fact does not, ipso facto, compel a conclusion that the trial court did not undertake an independent evaluation of the record. It is more likely that Supreme Court did exactly that and, as a result, concurred with the proposed findings submitted.”
Gordon v. Cheskin, 82 A.3d 1221, 1226 (Me. 2013)
“[P 21] Cheskin also challenges the court’s use of Gordon’s proposed order, arguing that it shows that the court did not use its independent judgment in fashioning the provisions of the order. Although a court must exercise independent judgment, it is good practice for the court to request input from the parties. One way to accomplish this is to seek and review proposed orders. When used appropriately, draft orders can aid in the fact-finding and decision-making process. See Jarvis, 2003 ME 53, P 15, 832 A.2d 775. Here, the trial court made detailed factual findings summarizing its view of the evidence and testimony presented at the hearing. Neither party submitted proposed findings; the court’s findings, which spanned several pages, were entirely its own. The court’s findings indicate a careful review of the evidence, as well as the application of independent judgment. Under these circumstances, the court did not abuse its discretion by adopting the terms of child contact contained in Gordon’s proposed order.”
In re Community Bank of Northern Virginia, 418 F.3d 277, 300 (3rd Cir. 2005)
“We are bound by the Supreme Court’s decision in Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), holding that a district court’s verbatim adoption of a party’s proposed findings of fact and conclusions of law, although highly disapproved of, is not per se grounds for reversal. Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1215-16 (3d Cir.1993). However, there must be evidence in the record demonstrating that the district court exercised “independent judgment” in adopting a party’s proposed findings. Bright v. Westmoreland County, 380 F.3d 729, 731-32 (3d Cir.2004); see also Pa. Envtl. Def. Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 233 (3d Cir.1998) (“The central issue is whether the district court has made an independent judgment.”).”
In re Doe, 640 F.3d 869, 872-873 (8th Cir. 2011)
“Second, the complainant alleges the district judge plagiarized the defendants’ briefs when drafting the order dismissing the complainant’s lawsuit. For example, the complainant estimates “[t]he Court plagiarized approximately 55% of Defendant’s [brief] … (approximately 65% if you omit the regurgitation of the facts).” The complainant criticizes many other aspects of the subject order, including allegedly erroneous legal citations and improper paraphrasing. The complainant received rulings on such allegations from the district judge in a second post-judgment order. But cf. Bradley v. Md. Cas. Co., 382 F.2d 415, 422-24 (8th Cir.1967) (treating a similar argument as a due process claim). These allegations must be dismissed because they are directly related to the merits of the judge’s decision or procedural rulings and are therefore not proper subjects of a judicial complaint. See 28 U.S.C. S 352(b)(1)(A)(ii); J.C.U.S. Rule 11(c)(1)(B). To the extent complainant’s allegations may not be merits-related, I briefly address the charges.
Complainant accurately identifies many similarities between the defendants’ briefs and the district judge’s order. Lawyers craft briefs for the express purpose of aiding the judge in making her decision, and the district judge is entitled to borrow from those briefs as she may see fit. Judges must be granted considerable leeway in the drafting of orders.
The subject judge apparently treated the parties’ briefs as proposed findings of fact and conclusions of law. In doing so, a district judge reflects the historic practice of a judge asking the prevailing party to prepare proposed findings of fact and conclusions of law and even the order itself. See also Fed.R.Civ.P. 52(a). . . .
The district judge here did not contact the defendants’ lawyers ex parte to draft the order. The district judge relied, in part, on the defendants’ briefs, albeit often in verbatim fashion and without attribution. Such judicial appropriation is not judicial misconduct. The dismissal order here is detailed, careful, thorough, and balanced in tone. This portion of the complaint must, therefore, be dismissed as “lacking sufficient evidence to raise an inference that misconduct has occurred.” 28 U.S.C. S 352(b)(1)(A)(iii); see J.C.U.S. Rule 11(c)(1)(C), and (D). Complainant’s criticism of the district judge’s citations and sources for her opinion is merits-related. Relief must be sought in an appeal, not in a judicial complaint.”
In re H.M., 9 N.E.3d 470 (Ohio 2014)
“{P 42} Trial courts are allowed to accept the proposed findings of fact and conclusions of law of a party. New Haven Corner Carry Out, Inc. v. Clay Distrib. Co., 3d Dist. No. 13-01-30, 2002-Ohio-2726, P 26. The trial court must thoroughly review the document and ensure that it is accurate. Clark v. Smith, 130 Ohio App.3d 648, 659 (3d Dist. 1998). Harmless error occurs when a court accepts proposed findings of fact and conclusions of law that include minor mistakes that do not prejudice a party. See id., see also New Haven at P 29. However, if the law or facts are unsupported and cause prejudice, the trial court was in error to accept them. See Clark at 659. The accuracy of the findings of fact and conclusions of law are reviewed under manifest weight. New Haven at P 26.{P 43} As we have already discussed, the finding that the court considered the wishes of the children is against the manifest weight of the evidence. As a result, accepting the proposed finding by LCCS that the court considered the wishes of the children was also in error.”
In re Marriage of Jensen, 631 P.2d 700, 704 (Mont. 1981)(Shea, J. concurring)
“Although I agree to affirm the judgment, I nonetheless express my disapproval of the trial court’s adoption verbatim of the proposed findings and conclusions submitted by counsel for the husband. Counsel for the wife, however, raises this issue for the first time on appeal, and therefore, in the context of her failure to raise this issue in the trial court after it originally adopted verbatim the proposed findings and conclusions, I would not reverse on this ground. However, absolutely no reason exists (other than judicial expediency, which is no reason at all) for this Court to tolerate the practice of a trial court simply rubber-stamping the proposed findings and conclusions submitted by counsel for the winning party.”
In re Marriage of Le Prowse, 646 P.2d 526, 529 (Mont. 1982)(Shea, J. concurring)
“I join in the decision of the majority, but I express reservations to the trial court’s wholesale adoption of the findings and conclusions of the prevailing party. In Tomaskie v. Tomaskie (1981), Mont., 625 P.2d 536, 538, 38 St.Rep. 416, we stated that “. . . [i]t is wise practice for the trial court to prepare and file its own findings and conclusions” and that “[i]t is becoming increasingly apparent to this Court, however, that the trial courts rely too heavily on the proposed findings and conclusions submitted by the winning party. That is wrong! See Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-xxvii.”Notwithstanding this message, the trial courts are still too often engaged in the wholesale adoption of the prevailing party’s proposed findings and conclusions, and yet, we seem to do nothing about it. I look at this practice no differently than I would a practice of this Court to ask each party to submit a proposed opinion to this Court along with its briefs, and then to adopt verbatim the proposed opinion of the prevailing party. I can just imagine the uproar of the trial bar and the public, and rightly so, if we were to do this. I have previously expressed in detail my position on proposed findings and conclusions in my concurring opinion to Jensen v. Jensen (1981), Mont., 631 P.2d 700, 704, 38 St.Rep. 1109, 1113, and I see no need to belabor the point.”
Jefferson v. Upton, 560 U.S. 284, 288, 293-294 (2010)
“Notably, as the Georgia Supreme Court acknowledged, the State’s opinion discusses statements purportedly made on Jefferson’s behalf by a witness “who did not testify” or participate in the proceedings. 263 Ga., at 318, 431 S.E.2d, at 112; see State Order 24-25. Nonetheless, the opinion “was adopted verbatim by the [state] court.” 263 Ga., at 317, 431 S.E.2d, at 111. And while the State Supreme Court recognized that we have ” ‘criticized’ ” such a practice, it affirmed the judgment. Id., at 317, 320, 431 S.E.2d, at 112, 114 (quoting Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L. Ed. 2d 518 (1985)) . . . .
Although we have stated that a court’s “verbatim adoption of findings of fact prepared by prevailing parties” should be treated as findings of the court, we have also criticized that practice. Anderson, 470 U.S., at 572, 105 S.Ct. 1504, 84 L. Ed. 2d 518. And we have not considered the lawfulness of, nor the application of the habeas statute to, the use of such a practice where (1) a judge solicits the proposed findings ex parte, (2) does not provide the opposing party an opportunity to criticize the findings or to submit his own, or (3) adopts findings that contain internal evidence suggesting that the judge may not have read them. Cf. id., at 568, 105 S.Ct. 1504, 84 L. Ed. 2d 518; Ga. Code of Judicial Conduct, Canon 3(A)(4) (1993) (prohibiting ex parte judicial communications).We decline to determine in the first instance whether any of the exceptions enumerated in SS 2254(d)(1)-(8) apply in this case, see, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L. Ed. 2d 1020 (2005), especially given that the facts surrounding the state habeas court’s process are undeveloped. Respondent has conceded that it drafted the state court’s final order at that court’s request and that the order was adopted verbatim, 263 Ga., at 317, 431 S.E.2d, at 111, and has not disputed in this Court that the state court solicited the order “ex parte and without prior notice” and “did not seek a proposed order from Petitioner,” Pet. for Cert. 12, and n. 8. But the precise nature of what transpired during the state-court proceedings is not fully known. See 263 Ga. at 316-317, 431 S.E.2d, at 111 (noting dispute as to whether Jefferson “had a chance to respond” to the final order); see also Pet. for Cert. 13. Accordingly, we believe it necessary for the lower courts to determine on remand whether the state court’s factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue. See Townsend, 372 U.S., at 313-319, 83.”
Kaechele v. Kaechele, 594 N.E.2d 641, 647 (Ohio 1991)
“As a general rule, we must find that such blanket adoption of a party’s proposed findings of fact breeds error and reversal. While this practice does not constitute error per se, it is a poor policy and should not be practiced. This is especially true in cases such as this, where there are forty-six such findings of fact pertaining to issues which are capable of subjective interpretation. Only if the findings of fact are supported by competent, credible evidence has no error occurred even though the trial court without comment adopted one party’s biased analysis of the evidence as findings of fact.”
Limeres v. Limeres, 320 P.3d 291, 302 (Alaska 2014)
“Rene argues that the superior court erred by adopting uncritically the draft findings of fact proposed by Amy’s attorney. A trial court “abuses its discretion when it adopts, without explanation or change, proposed findings of fact and conclusions of law that substantially deviate from the court’s earlier oral decision.” But the court here stated at the close of trial that its oral remarks were not intended to be conclusive, and it is not cause for objection that its immediate view of the evidence was modified in some particulars by time and by the post-trial submissions of the parties. We conclude that the court did not abuse its discretion when it entered the findings of fact and conclusions of law that Amy drafted.”
Lynk v. La Porte Superior Court No. 2, 789 F.2d 554, 558 (7th Cir. 1986)
“The judge wrote an opinion which consists largely of paragraphs cut out of the defendants’ brief and pasted into the opinion without even the courtesy of retyping. We have criticized this judge’s practice of copying portions of the winning party’s brief into his opinions before. See Walton v. United Consumers Club, Inc., 786 F.2d 303 (7th Cir. 1986); Andre v. Bendix Corp., 774 F.2d 786, 800-01 (7th Cir. 1985). We shall not repeat these criticisms. We trust the practice will now cease.”
Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 518 N.E.2d 519, 526 (Mass. 1988)
“Whenever a trial judge adopts verbatim findings suggested by one side, a gnawing doubt arises about how much the judge injected his own intelligence into the process. See Cormier v. Carty, 381 Mass. 234, 236-237 (1980); Lewis v. Emerson, 391 Mass. 517, 524 (1984); Markell v. Sidney B. Pfeifer Foundation, 9 Mass. App. Ct. 412, 416-418 (1980), and cases cited therein; Edinburg v. Cavers, 22 Mass. App. Ct. 212, 218-219 (1986). In this case, the first 37 numbered paragraphs of the findings track those proposed by Makino. Of the remaining nine numbered paragraphs, the source material for much of them is readily discoverable in the Makino requests, although the order and choice of material has been somewhat altered. The cases cited above, while sounding a cautionary note, do not announce that copying liberally from a set of proposed findings is tantamount to reversible error. There remains the fundamental question whether the judge’s findings of fact pass the “clearly erroneous” test of Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Edinburg v. Cavers, 22 Mass. App. Ct. at 218-219.”
Mountainview Landowners Co-op. Ass’n, Inc. v. Cool, 136 P.3d 332, 337 n.5 (Idaho 2006)
“The Cools also assert it was error for the district court to adopt the Association’s proposed language into the amended judgment and cite to cases critical of the practice of adopting verbatim a party’s proposed findings of fact and conclusions of law. Although we have cautioned trial courts against that practice, doing so does not constitute reversible error unless the findings reached are clearly erroneous. Fox v. Mountain W. Elec., Inc., 137 Idaho 703, 707, 52 P.3d 848, 852 (2002). In this case, however, the district court did not adopt findings of fact or conclusions of law proposed by the Association. Instead, on remand both parties submitted proposed language to modify the original judgment and the district court chose that presented by the Association. The Cools have not explained how doing so was error.”
Parlak v. Holder, 578 F.3d 457, 472 (6th Cir. 2009)(Martin, J. dissenting)
“At his removal hearing, the immigration judge, Elizabeth Hacker, ruled against Parlak on every point. She was apparently so convinced of his guilt that her opinion consisted largely of a cut-and-pasted agglomeration of the government’s pre-trial briefs. Her opinion relied heavily on evidence obtained via torture by the Turkish Security Courts; she cited those documents roughly eighty times. On review, the Board of Immigration Appeals professed to affirm all of the IJ’s [Immigration Judge’s] factual findings and credibility determinations without regard to the Security Court documents, though it did not explain in detail how the IJ’s conclusions could be supported without that evidence. The Board vacated the IJ’s entirely meritless conclusion that Parlak murdered two Turkish soldiers, based wholly upon these same Turkish Security Court documents. But the Board repeated the IJ’s other legal errors, many of which the majority repeats today.”
Pollock v. Ramirez, 870 P.2d 149 (N.M. 1994)
“The trial court adopted findings of fact and conclusions of law that were virtually the same as those submitted by Defendants. Plaintiffs contend that the trial court abdicated its judicial responsibility by adopting all of Defendants’ requested findings and conclusions. We agree with Plaintiffs that the trial court is required to exercise independent judgment in arriving at its decision and should generally avoid verbatim adoption of all of the findings and conclusions submitted by a party. See Coulter v. Stewart, 97 N.M. 616, 617, 642 P.2d 602, 603 (1982); In re Hamilton, 97 N.M. 111, 114, 637 P.2d 542, 545 (1981). Here, however, viewing the judgment entered by the trial court in light of the evidence adduced at trial, we do not believe that the judgment entered below is subject to reversal. The adoption of verbatim findings does not constitute reversible error if the trial court’s findings are supported by proper evidence in the record. Coulter, 97 N.M. at 617, 642 P.2d at 603; In re Hamilton, 97 N.M. at 114, 637 P.2d at 545.”
Prowell v. State, 741 N.E.2d 704, 712 (Ind. 2001)
“Prowell first points out that this paragraph [postconviction court’s findings and conclusions] is nearly identical to language in the State’s reply brief in State v. Holmes, 728 N.E.2d 164 (Ind.2000), and to the postconviction relief court’s findings of fact and conclusions of law in Wrinkles v. State, 690 N.E.2d 1156 (Ind.1997). Although we sympathize with the usefulness of recycling language, it is not appropriate to use form language where those statements are not an accurate reflection of the testimony and evidence. That is the case here. As already noted, the statement that the evidence presented to the postconviction relief court was simply “more of the same” as that presented to the sentencing court is clearly erroneous. Both Bailey and Liffick testified, in depth, as to the “monumental” and “very significant” differences between a diagnosis of paranoid personality disorder and a diagnosis of schizophrenia. Nor can it be said that the evidence was produced “with the advantage of hindsight and an additional five years time.” Vowels continued to represent Prowell in his direct appeal to this Court and the ineffectiveness of trial counsel at the guilt and sentencing phases was not an issue in that direct appeal, which concluded when rehearing was denied on March 2, 1998. The counsel who represented Prowell in postconviction proceedings entered their appearances on March 31 and October 13, 1998, and the postconviction hearing took place on April 19, 1999. Counsel did not have an “additional five years” to investigate this case, let alone “unlimited time.””
Sawyer-Adecor Int’l v. Anglin, 646 P.2d 1194, 1197-1198 (Mont. 1982)
“The continuing practice of verbatim adoption of proposed findings by district courts in judge-trials remains a sore point in this state, especially to losing counsel who see therein a lack of due consideration by the district courts of their parties’ contentions of fact and law. We expressed our disapproval of adopting verbatim the prevailing parties’ proposed findings and conclusions in Tomaskie v. Tomaskie (1981), Mont., 625 P.2d 536, 38 St.Rep. 416, and in that case referred to Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-xxvii. In In Re Marriage of Jensen (1981), Mont., 631 P.2d 700, 703-711, 38 St.Rep. 1109, where the District Court had adopted verbatim findings and conclusions, it was suggested by appellant that a lower standard should exist for the review by us of findings and conclusions drafted by counsel for the prevailing party than exists under the “clearly erroneous” standard of Rule 52(a), M.R.Civ.P. We declined to adopt that suggestion in Jensen. Again, in City of Billings v. Public Service Com’n. (1981), Mont., 631 P.2d 1295, 38 St.Rep. 1162, we met the same problem, repeated that we disapproved of the practice of adopting verbatim findings and conclusions submitted by the prevailing party, but restated that the standard for review of the findings and conclusions remains the same, citing United States v. El Paso Gas Co. (1964), 376 U.S. 651, at 656, 84 S.Ct. 1044, at 1047, 12 L.Ed.2d 12, at 17.
We continue to disapprove, heartily and stoutly, the verbatim adoption of proposed findings and conclusions. We have expressed the reasons on several occasions. We are not compelled, however, when in appellate review we are confronted with a verbatim adoption, to find such an inherent fault therein that the prevailing party must be reversed. Although the “clearly erroneous” standard of Rule 52(a), still applies to verbatim findings, it is equally incumbent upon us to apply, in appellate review of equity cases and proceedings of an equitable nature, the rule that we review all questions of fact arising upon the evidence presented in the record, whether the evidence is alleged to be insufficient or not, and to determine the same, as well as questions of law. Section 3-2-204(5), MCA. There is in that statutory requirement for our appellate review a measure of protection for the losing party coming to us on appeal, at least in equity cases such as this.”
Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858-859 (N.D. 1995)
“Following an evidentiary hearing, the trial court issued a short memorandum opinion, stating: “This is that rare and unusual case where the Court agrees entirely with the issues outlined and the suggested resolution in defense counsel’s post-trial brief. It is adopted as the opinion of the Court. Defendant’s counsel will prepare and submit the necessary Findings of Fact, Conclusions of Law, Order for Judgment and Judgment.”
Because such an approach may fail to foster the appearance of fairness and impartiality in our courts, and may thereby reduce confidence in our judicial system, we cannot approve it as a practice. It is preferable that the court, if it chooses to issue a written memorandum opinion, state in its own words the rationale and basis for its decision. However, the trial court did note this was the “rare and unusual” case where counsel’s brief effectively spoke for the court in its reasoning and analysis of the issues. The court implicitly concluded it could not add anything meaningful to the analysis in counsel’s brief, so it directed counsel to prepare findings based upon the brief. Indicative that the court was doing its own thinking, however, is its further statement in the memorandum opinion that Leslie had no right to retain insurance proceeds for damages sustained after the hearing to a car in Darcie’s possession.”
State v. McDermott, 810 N.W.2d 237, 240 n.2 (Wis. 2012)
“[2] McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.” (Most capitalization omitted.) The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is: “For all of the reasons set forth in the State’s excellent brief, which the court adopts as its decision in this matter, the court denies the defendant’s motion as well as the evidentiary hearing he requests.” We agree with McDermott that this is inappropriate— judges must not only make their independent analyses of issues presented to them for decision, but should also explain their rationale to the parties and to the public. See Trieschmann v. Trieschmann, 178 Wis.2d 538, 541-542, 504 N.W.2d 433, 434 (Ct.App.1993) (Improper to “simply accept[ ] a [party]’s position on all of the issues of fact and law without stating any reasons for doing so[.]”); cf. WIS. STAT. S 751.10 (“The supreme court shall decide all cases in writing.”); WIS. STAT. S 752.41(1) (“In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.”). Although we do not in Wisconsin have a specific rule that requires trial judges to state their reasons, as does, for example, the United States Court of Appeals for the Seventh Circuit, we believe that the following admonitions by that court are a good reminder why judicial decisions at all levels must be explained by the judge or judges in their own words:
Circuit Rule 50, which requires a judge to give reasons for dismissing a complaint, serves three functions: to create the mental discipline that an obligation to state reasons produces, to assure the parties that the court has considered the important arguments, and to enable a reviewing court to know the reasons for the judgment. A reference to another judge’s opinion at an earlier stage of the case, plus an unreasoned statement of legal conclusions, fulfils none of these.
From time to time district judges extract portions of briefs and use them as the basis of opinions. We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own…. Judicial adoption of an entire brief is worse. It withholds information about what arguments, in particular, the court found persuasive, and why it rejected contrary views. Unvarnished incorporation of a brief is a practice we hope to see no more. DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.1990). We agree. Since our review of the circuit court’s denial of McDermott’s motion to modify his sentence is based on our de novo analysis of whether he has presented new factors, the circuit court’s failure to give its reasons (rather than adopt the State’s brief in haec verba) is of no consequence in this case.”
State ex rel. Oklahoma Bar Association v. Ward, 2015 OK 48 (Okla. 2015)
“P51 It bears repeating that the Findings of Fact and Conclusions of Law filed after the evidentiary hearing in the underlying criminal case were drafted entirely by appellate counsel for Mr. Potts with the intention of gaining a reversal. The trial court signed off on the Findings of Fact and Conclusions of Law, which upon review, clearly reflect appellate counsel’s untested theory of the case. The Court of Criminal Appeals then reversed Mr. Potts’ conviction for prosecutorial misconduct and ineffective assistance of counsel relying solely on these Findings of Fact and Conclusions of Law. The State’s failure to make any kind of record at the evidentiary hearing and its blatant attempt to sweep the misgivings of the Muskogee County District Attorney’s office under the rug at the expense of Respondent Starr has exponentially compounded all aspects of this case. The reversal of Mr. Potts’ conviction is not supported by the evidentiary record presented to the PRT [Professional Responsibility Tribunal].
P52 The OBA’s [Oklahoma Bar Association] interest in prosecutorial ethics and protection of criminal defendants is a worthy and most timely concern, but the investigation into Respondent Ward and Respondent Starr’s handling of this case is not worthy of the time and effort employed. While we agree that the buck must stop somewhere that somewhere is not with Respondent Ward or Respondent Starr. It is with the District Attorney, who is ultimately responsible for the prosecution of cases in the county and who, as chief administrator of the office, is at least partially responsible for the conduct and trial tactics of his or her assistants.”
Stone v. City of Kiowa, 950 P.2d 1305, 1308 (Kan. 1997)
“There is nothing inherently wrong with a trial court’s adopting a party’s findings and conclusions in their entirety as long as they had been individually considered, but it is the sort of shorthand that would be susceptible to abuse. Thus, although not a practice to be encouraged, it is not, standing alone, a violation of Supreme Court Rule 165 or K.S.A. 60-252.”
Suleski v. Rupe, 855 N.W.2d 330, 339-340 (Minn. 2014)
“The district court adopted father’s proposed order almost verbatim. Mother argues that the district court did so improperly. Appellate courts disfavor the verbatim adoption of a party’s proposed ruling by the district court but do not automatically reverse a district court for doing so. See Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn.App.2005), review denied (Minn. Sept. 28, 2005). Verbatim adoption of a proposed ruling raises questions about whether the district court independently evaluated the evidence and whether the ruling adopted by the district court is sufficient to allow meaningful appellate review. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App.1992), review denied (Minn. Feb. 12, 1993).
Because this district court made its ruling from the bench and directed father’s attorney to prepare an order accordingly, the district court made its ruling before it received the proposed order. These facts undermine any assertion that the district court failed to exercise independent judgment in the case. Further, while we are remanding the parenting schedule for possible adjustment and for additional findings, the other aspects of our opinion demonstrate that the district court’s rulings on the other matters considered in this appeal are sufficient to allow appellate review of those rulings.”
Tomaskie v. Tomaskie, 625 P.2d 536, 538-539 (Mont. 1981)
“We proceed next to the procedural problems surrounding the entry of the findings and conclusions. It is wise practice for the trial court to prepare and file its own findings and conclusions. Only in that fashion can the parties know that the trial court has carefully considered all the relevant facts and issues involved. This is not to say, however, that the trial court shouldn’t have guidance from the lawyers on both sides. But guidance in an adversary system is always such that the findings and conclusions may not indicate a thorough treatment of the facts and law to be applied. But proposed findings and conclusions give the trial judge good insight as to just what factors and what law the parties deem to be important. It is then up to the trial court to translate its own judgment and conclusions into appropriate findings and conclusions. It is becoming increasingly apparent to this Court, however, that the trial courts rely too heavily on the proposed findings and conclusions submitted by the winning party. That is wrong! See Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-xxvii.”
Trieschmann v. Trieschmann, 504 N.W.2d 433, 434 (Wis. 1993)
“Based on the record, we are unable to determine if the trial court’s decision is a product of the court’s rational decision-making process or that of Patricia’s attorney. In adopting Patricia’s memorandum, the court failed to articulate the factors upon which it based its decision as required. Instead, it appears as though the court simply accepted Patricia’s position on all of the issues of fact and law without stating any reasons for doing so other than its belief that doing so was the “only just solution.” While that may in fact be true, the court failed to indicate why it believed Patricia’s proposal provided the proper result. Patricia argues that the court’s acceptance of her memorandum and findings of fact is evidence of a rational decision-making process. We disagree. We have reviewed Patricia’s memorandum and conclude that it is devoid of any explanation or reasoning as to why the court accepted Patricia’s views regarding the disputed facts and law over Michael’s views.”
United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004)
“The CCA’s [Navy–Marine Corps Court of Criminal Appeals] opinion in this case replicates large portions of the statement of facts, analysis, and conclusions of law from the Government’s Answer. On such a record we cannot disaggregate the Government’s argument from the CCA’s review. Therefore, we cannot determine that Appellant received the “awesome, plenary, and de novo” review to which he was entitled by law. See Duncan, 38 M.J. at 479 (citing Cole, 31 M.J. at 270). In short, the fact that Appellant received some of what he was entitled to does not mean that he received all to which he was entitled. The lower court’s opinion indicates that he did not. Article 66(c) review is a substantial right. It follows that in the absence of such a complete review, Appellant has suffered material prejudice to a substantial right.”
Walton v. United Consumers Club, 786 F.2d 303, 313-314 (7th Cir. 1986)
“The district judge’s adoption of the statement of facts in one party’s brief as the court’s findings of fact is unfortunate. See, e.g., Andre v. Bendix Corp., 774 F.2d 786, 799-801 (7th Cir. 1985). The wholesale adoption of a party’s proposed findings obscures the reasoning process of the judge. It deprives this court of the findings that facilitate intelligent review. It causes the losing litigants to conclude that they did not receive a fair shake from the court. If a judge allows himself to act as a mouthpiece for the winning party, the loser may conclude that the judge was not impartial — that he was an advocate, using an advocate’s words, rather than a disinterested evaluator of the several advocates’ urgings. This is an especially serious problem when the judge adopts language from a brief as opposed to selecting from among findings of fact that have been proposed by one side and subject to criticism by the other side. See In re X-Cel, Inc., 776 F.2d 130, 133-34 (7th Cir. 1985). It is important that justice be seen to be done, just as it is important that justice be done. The adoption of a brief as findings of fact does not give the parties the appearance of careful, detached judicial conduct.”
Weeks v. Weeks, 650 A.2d 945, 946 (Me. 1994)
“When, as here, the Superior Court acts as an intermediate appellate court, we review directly the record before the District Court. Pederson v. Pederson, 644 A.2d 1045, 1046 (Me.1994). The trial court has a responsibility to find the facts and apply the law. See Clifford v. Klein, 463 A.2d 709, 711 (Me.1983). It is not automatic error for a trial court to adopt verbatim the findings proposed by one party. Estate of Record, 534 A.2d 1319, 1323 (Me.1987). We have recognized, however, that problems may arise when a trial court adopts proposed findings verbatim without any change to reflect its own opinion, In re Sabrina M., 460 A.2d 1009, 1013 (Me.1983), because such findings are “`not the original product of a disinterested mind.'” Andre v. Bendix Corp., 774 F.2d 786, 800 (7th Cir.1985) (quoting Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1284 (7th Cir.1977)). Further, we have several times expressed disapproval of the practice of adopting verbatim the proposed findings of a party. Estate of Record, 534 A.2d at 1323; Perreault v. Parker, 490 A.2d 203, 205-06 (Me.1985); Clifford v. Klein, 463 A.2d at 712-13; In re Sabrina M., 460 A.2d at 1013.When a trial court adopts verbatim the proposed findings of a party, we must scrutinize the findings closely to determine whether the court has adequately performed its judicial function. In re Sabrina M., 460 A.2d at 1013. If after close scrutiny of such findings we are uncertain whether that function has been performed adequately, we will vacate the judgment. Clifford v. Klein, 463 A.2d at 713.”
LAW REVIEWS
Copy-Paste Precedent, 13 J. App. Prac. & Process 153 (2012)
“The federal appellate courts now decide eighty-five percent of their cases through unpublished, nonprecedential opinions. These are meant to resolve disputes squarely governed by existing precedent; they are not supposed to make law. Scholars have paid little attention, however, to the process by which unpublished opinions are prepared — or to ways in which this process allows some unpublished opinions to become de facto precedent.
This essay identifies one such way. “Copy-paste precedent” arises when the text of an unpublished opinion gets repeatedly copied and pasted by staff attorneys drafting subsequent opinions on the same topic. Whereas ordinary precedent is meant to be reasoned and published, then cited and quoted, “copy-paste precedent” gets followed without being either cited or explicitly quoted, thereby gaining the influence of precedent without real precedent’s authority — or scrutiny. The obscurity of copy-paste precedent makes it, paradoxically, harder to correct or overturn than regular binding precedent and strips it of the rule of law, legitimacy, notice, and reliance values standardly invoked to support precedent’s use.
Drawing an example from the Second Circuit’s largely unpublished case law on the meaning of “social visibility” in asylum law — the subject of a deepening circuit split and a recent en banc opinion in the Ninth Circuit — this essay shows that copy-paste precedent can prove even more influential than a circuit’s precedential statements on the same subject. This essay calls attention to a set of decisions in which the law that gets copied and pasted is substantively mistaken. Its broader goal, however, is to show why copy-paste precedent is itself a mistaken way for courts to make law.”
Copyright Originality and Judicial Originality, 63 U. Toronto L.J. 385 (2013)
“Judicial opinions, and especially trial judgments, would appear to differ significantly from the kinds of works that typically attract the attention of copyright law, because eligibility for copyright protection requires originality. Whether judicial opinions even enjoy copyright protection is a matter of some disagreement, but in any case, like most other forms of legal prose, they are usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche. Yet the definition of originality in the copyright context turns out to have important commonalities with the generic expectations associated with judicial decisions. These questions come to the fore in recent disputes over various forms of copying in trial judgments — involving copying from the pleadings (with or without attribution), and unattributed copying from law journal articles or from other judgments by the same judge or by others.”
Cut-and-Paste Justice: A Case Comment on Cojocaru v. British Columbia Women’s Hospital and Health Centre, SSRN (2014)
“Can judges simply copy-and-paste, without attribution, vast portions of a party’s factum in their own reasons? At what point does this practice become so egregious that it risks rebutting the presumption of integrity and impartiality from which all judges benefit? This question was put before the Supreme Court of Canada in Cojocaru v. British Columbia Women’s Hospital and Health Centre (2013 SCC 30, [2013] 2 SCR 357). In this case comment, the author reviews the Cojocaru decision and the Court’s analysis, discusses the decision’s shortcomings, considers the main takeaways for various parties, and examines a surprising comment contained in the decision.”
Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008)
“There is no one right way to write a judicial opinion. This article does not seek to define the perfect judicial opinion. Rather, this article intends to show how form and substance must be laced with ethical considerations. Part I defines the concept of ethics as applied to judicial opinion writing. Part II explains the function and importance of opinions to the judiciary and the public. Part III explores the different types of audiences of judicial opinions. Part IV contains a general discussion of different opinion writing styles commonly used in judicial opinions. Part V discusses the ethical considerations present in pure opinions: Judicial writings whose constituent characteristics are highly formalized. Part VI explores the ethical considerations present in less formal judicial writings, otherwise known as impure opinions. Part VII reviews ethical considerations specific to pure and impure opinions. Finally, Part VIII discusses the use of law clerks in writing opinions.”
High Court Studies: Is the New York State Court of Appeals Still “Friendless?” An Empirical Study of Amicus Curiae Participation, 72 Alb. L. Rev. 701 (2009)
“[T]here is little doubt that amicus filings have flooded the federal courts as an attempt to control, or at least influence, judicial decision-making. At least as of 1989, the same cannot be said for the New York State Court of Appeals. The question remains, why does the Court of Appeals, which decides issues of statewide significance, have minimal participation from non-parties when amicus curiae briefs are encouraged by the court? Moreover, has it changed? Have the words of Judge Kaye gone unheeded, or have they inspired more amicus filings over the last twenty years? And if it has changed, what impact have amicus briefs had on the court’s decision-making process? In an attempt to answer these questions, I [Matthew Laroche] conducted an empirical study of amicus curiae participation in the Court of Appeals over the last twenty years. To accomplish this task, I assembled a large database consisting of all Court of Appeals cases which yielded a published opinion from 1988-2007, as well as selected years in the past for comparison. For each decision, I recorded, among other things, the outcome of the case, whether an amicus brief was filed, the number of amicus briefs supporting appellant, the number of briefs supporting respondent, and the author of each amicus brief. In addition, I also conducted a citation study to identify how often amicus briefs are cited in the court’s opinions. After constructing the database, I used statistical techniques to assess trends in amicus filings, as well as the influence of amicus briefs on the outcome of cases in the Court of Appeals.”
Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, SSRN (2013)
“Scholars have dedicated substantial research efforts to investigating whether interest group amicus curiae briefs influence the behavior of Supreme Court justices. Despite this, there has been little systematic attention devoted to exploring what is arguably the most important aspect of the Court’s policy outputs – its majority opinions. We [Pamela Corley, Paul M. Collins Jr. and Jesse Hamner] remedy this state of affairs by using plagiarism detection software [WCopyfind] to assess the ability of amicus briefs to shape the content of judicial opinions. Our findings indicate that the justices incorporate language from amicus briefs into their opinions based primarily on the extent to which amicus briefs contribute to their ability to make effective law and policy. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.”
Judicial ‘Copying’ Does Not Affect Independence or Impartiality: Supreme Court of Canada, 8 J. Intell. Prop. L. & Pract. 833 (2013)
“Unattributed copying of another’s work is plagiarism. Except when you are a judge. This was the view of a unanimous Supreme Court in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. The decision, a medical negligence case, is riddled with copyright implications. This work explores those implications.”
Judicial Plagiarism: It May Be Fair Use But Is It Ethical?, 18 Cardozo L. Rev. 1253 (1996)
“This Note argues that judicial plagiarism is unethical and proposes that the offense be specifically prohibited by an amendment to the Model Code of Judicial Conduct (the “Code”) which would require responsible writing. Part I examines the offense of plagiarism, its traditional and appropriate treatment as an ethical violation, and the importance of attribution. Part II reviews copyright law and the relevant scope of its protection, how infringement case requirements exclude plagiarism, and how judicial use of protected works would be defensible under the fair use doctrine. Part III examines the system of judicial ethics, the standards and application of the Code of Judicial Conduct, and how the role and exposure of judicial opinions has expanded in the legal community. Part IV considers whether current law is adequate to protect authors against judicial plagiarism and discusses how this phenomenon undermines the judiciary’s integrity. Finally, Part V proposes a section amendment to the Model Code of Judicial Conduct and concludes that judicial plagiarism, while perhaps legally defensible under the fair use doctrine, should be recognized as a breach of judicial ethics.”
Just the Facts, Ma’am–A Review of the Practice of the Verbatim Adoption of Findings of Fact and Conclusions of Law, 44 St. Louis L.J. 197 (2000)
“This article analyzes the practice of the verbatim adoption of findings of fact and conclusions of law, focusing on federal district courts. Part II outlines the evolution of the practice through the history of Rule 52 and through the judiciary’s response to district courts who adopt findings of fact and conclusions of law verbatim. Part III discusses circumstances in which it may, or may not, be appropriate to adopt findings and conclusions verbatim. Part IV analyzes the various procedures district courts apply when adopting findings and conclusions, and whether appellate courts consistently apply the clearly erroneous standard. Part V outlines the various ethical and professional obligations of judges and attorneys. The article concludes that the practice of adopting findings and conclusions verbatim will continue to evolve and endure in the courts. However, the history of the practice balanced with the duties of attorneys and the judiciary provides sufficient checks against abuse of the practice.”
Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Cath. U. L. Rev. 777 (2008)
“Those engaged in legal scholarship should strive for intellectual honesty and avoid plagiarism, but what exactly is required? This article explores plagiarism from the perspective of professors, judges, and practicing attorneys and discusses topics such as reuse of one’s own previously published writing, authorship, and the difference between plagiarism and copyright infringement.”
Unoriginal Sin: The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077 (2013)
“Judicial opinions are the core work product of judges; they should be tangible proof to the parties that the court analyzed their claims or defenses and independently reached a reasoned decision. Yet courts often request that parties prepare proposed findings of fact and conclusions of law and thereafter adopt the prevailing party’s findings and conclusions verbatim or nearly so. In other cases, courts copy portions of the winning party’s brief or legal memorandum into their opinions or orders without attribution. These practices are fairly described as “judicial plagiarism.” The limited case law on-point establishes that if a court’s verbatim adoption of a party’s positions or its replication of a party’s brief reflects a lack of independent analysis or reasoning, or an apparent abdication or delegation of the court’s judicial function, it may furnish grounds for reversal. Grounds for reversal should also exist if judicial plagiarism reasonably evidences a court’s alleged bias or partiality. This Article goes further, however, to argue that judicial plagiarism may constitute judicial misconduct for which the offending judge may be disciplined under the Model Code of Judicial Conduct. Deciding whether judicial plagiarism rises to the level of judicial misconduct or whether it is simply a judge’s ill-considered stab at efficiency is a difficult inquiry. To aid in this important determination, the Article identifies factors that higher courts and judicial conduct authorities should consider in the process. The Article also explains why courts’ and scholars’ long-standing defenses of judicial plagiarism fail.”
What is a Judicial Author?, 62 Mercer L. Rev. 519 (2011)
“This paper examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the effect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers’ written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading.”
Which Judges Write Their Opinions (and Should We Care), 32 Fla. St. U. L. Rev. 1077 (2004-2005)
“Common wisdom holds that many federal judges do not write their own opinions. While their degree of input into opinion writing varies, almost all rely to some extent on law clerks, typically recent law school graduates, to research and draft substantial sections of the opinion. Why should we care which judges write their opinions? We posit that determining the actual input of federal judges into the authorship of opinions provides useful information in a number of contexts, including judicial promotion decisions, the allocation of scarce judicial resources, and the judicial clerkship market for law students. We start with generic tests of authorship obtained from computational linguistics. To assess the effectiveness of these tests in the judicial context, we identify (based on an informal survey of several sitting federal judges), three judges reputed to write their own opinions. We then use a randomly selected set of opinions for active circuit judges from 1998 to 2000 to examine whether the generic tests succeed in ranking these three judges high in terms of authorship. The generic tests failed to distinguish authorship due in part to the subject matter specific nature of opinions. Whether an opinion is a criminal, administrative, or commercial law opinion matters. Comparing two judges based on their criminal law opinions may provide different results than comparing the same judges based on the criminal law opinions of one judge against the administrative law opinions of the other judge. Our generic tests did not control for subject matter of opinions. We provide a number of more customized tests for the judicial context that attempt to control for subject matter. Using these customized tests, we are able to distinguish the three test judges based on authorship. “
AMERICAN LAW REPORTS
Application of “Clearly Erroneous” Test of Rule 52(a) of Federal Rules of Civil Procedure to Trial Court’s Findings of Fact Based on Documentary Evidence, 11 A.L.R. Fed. 212 (1972)
“This annotation collects the cases in which the courts have discussed the question as to the application of the “clearly erroneous” test prescribed by Rule 52(a) on appellate review in this situation where the trial court’s findings of fact were based on documentary evidence, in an action tried upon the facts without a jury. Also considered briefly in order to place the subject in context are cases talking in terms of “ultimate facts,” “mixed questions” of fact and law, and similar verbalizations, to hold the “clearly erroneous” test inapplicable in reviewing a trial court’s findings of fact (S 3[b], infra), as well as cases discussing the functionally related question of the effect of undisputed facts on the test to be applied on appellate review (S 3[c], infra).”
Propriety and Effect of Trial Court’s Adoption of Findings Prepared by Prevailing Party, 54 A.L.R.3d 868 (1973)
“In many jurisdictions it is a common practice for the trial court to request the attorney for the prevailing party to prepare the findings; this annotation collects the state court cases which discuss the propriety and effect of the trial court’s adopting, either wholly or in substantial part, findings so prepared. Cases are not included in which it merely appears that such a procedure took place; rather, a question must have been raised, either by one of the parties or by the court on its own motion, as to the propriety or effect of the practice. Cases involving findings prepared by counsel for the losing party are without the scope of this annotation, as are cases involving the practice of requesting findings from both parties and then marking each finding either “found” or “refused.” Practice rules often govern, either specifically or by inference, the method and duty of preparation of the findings. Since this annotation is not intended to present the statutory law of any jurisdiction, but considers statutes and rules only as reflected by the cases herein and to the extent necessary to an understanding thereof, the attorney is advised to consult the applicable statutes and rules of the jurisdiction with which he is concerned.”
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1 Common terms that have appeared in the cut-and-paste cases and literature on this subject include: copy-and-paste, copy-paste, judicial copying, judicial plagiarism, ghostwriting, recycling, photocopying, verbatim, in haec verba, xeroxing, rubberstamping and boilerplate. These reflect differing conceptions that range from a mechanical innocent word processing technique to weighted citations to the briefs of one party to blatant copyright violations and unlawful delegation of judicial authority.
2 New scientific techniques have already been enlisted to uncover cut-and-paste operations, including computational linguistics, citation studies and plagiarism software. See Matthew Laroche, High Court Studies: Is the New York State Court of Appeals Still “Friendless?” An Empirical Study of Amicus Curiae Participation, 72 Alb. L. Rev. 701 (2009)(citation study); Pamela Corley et al., Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, SSRN (2013)(plagiarism detection software); Stephen J. Choi and G. Mitu Gulati, Which Judges Write Their Opinions (and Should We Care), 32 Fla. St. U. L. Rev. 1077 (2004-2005)(computational linguistics).
3 See Fed. R. Civ. Proc. R. 52; Anderson v. Bessemer City, 470 U.S. 564 (1985). See generally Ken Strutin, Case Law in an Era of Heightened Scrutiny, LLRX, Aug. 18, 2014 (Judicial decisions embody legal reasoning, societal values and support the foundations of our legal system. For scholars, lawyers and librarians there are three essential components: decision-making, opinion writing and publication. Recently, scrutiny of Supreme Court opinions and the work habits of the courts in general has been drawing attention to the entirety of judicial work that is at the heart of precedent.”).
4 See Carol M. Bast and Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Cath. U. L. Rev. 777 (2008)(“A judge, faced with a heavy case load, may adopt written work developed by the parties to the case when writing the decision or taking other action related to the case. A judge may ask the prevailing attorney to draft an order for the judge’s signature, may use portions of court documents submitted by the attorneys in the case, or may have a law clerk write the first draft or even most of the final opinion. This practice is widespread and allows cases to be decided more expeditiously.” Id. at 800-801.).
5 See, e.g., In re Community Bank of Northern Virginia, 418 F. 3d 277 (3rd Cir. 2005)(“In the context of meeting the requirements of Rule 23(a) and (b), we are not satisfied that the bare statement that the “proposed findings and conclusions are fully supported in the record” meets the minimum standard of accepting verbatim adoption as contemplated in the teachings of Anderson, 470 U.S. at 572, 105 S.Ct. 1504. We believe that a court must set forth persuasive reasons, stated with objectivity, why the submissions of counsel totally reflect the independent judgment of the court. The act of accepting as its own these critical suggestions is an important judicial conclusion whose acceptability is merited only to the extent that sound reason stated publicly supports the acceptance. Because we are not convinced that the District Court exercised “independent judgment” in adopting the proposed findings of the settling parties, we conclude that the settlement-only class was never properly certified in accordance with Amchem. “[W]ithout certification there is no class action, and in a settlement entered without class certification the judgment will not have res judicata effect on the claims of absent class members.” G.M. Trucks, 55 F.3d at 800 (internal citation, quotations, and alterations omitted). We will therefore vacate the settlement Order and remand to the District Court.” Id. at 301-302 (footnotes omitted).).
6 See generally J. A. Bryant, Jr., Propriety and Effect of Trial Court’s Adoption of Findings Prepared by Prevailing Party, 54 A.L.R.3d 868 (1973).
7 See court decisions and law reviews cited infra. See also Douglas R. Richmond, Unoriginal Sin: The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077 (2013)(After a thorough and thoughtful analysis of judicial decision-making and the legal and ethical pitfalls of verbatim copying, Mr. Richmond offered these detailed guidelines for evaluating “independent judgment”: “In determining whether a court exercised independent judgment, a reviewing court should consider (1) the time between the submission of the document adopted or copied and the issuance of the offending opinion, order, conclusions of law, or findings of fact, with a longer time generally suggesting that the judge independently analyzed the issues; (2) the extent of the judge’s adoption or copying, with no mathematical formula or quota for evaluating replication required; (3) whether the challenged text is supported by appropriate citations to the record or appropriate legal authority; (4) the accuracy of any proposed findings of fact when compared to the record; (5) whether cited legal authority is apposite; (6) whether competing cases are cited, discussed, or distinguished; (7) whether the court heard arguments before ruling; (9) the tenor of the challenged opinion or order, i.e., whether it reads like an advocacy piece or whether it appears to be balanced; (10) whether the challenged opinion or order contains errors or misstatements found in the document from which the judge copied or which the judge adopted, with the replication of errors or misstatements indicating a lack of independent review; (11) whether the case involves difficult scientific concepts or issues of a highly technical nature, such that the court might reasonably be expected to need the parties’ assistance in describing or explaining them in its decision or findings; (12) whether both parties were invited to submit proposed findings of fact and conclusions of law or orders; and (13) any other factor that either reasonably indicates the court’s exercise of independent judgment or that reasonably negates that conclusion or materially diminishes its likelihood.” Id. at 1101-1102 (footnotes omitted).).