Doesn’t Matter Who Wins the K Race; We’re All the Same

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

I was once in a room with the head of a large class action firm. Dude was scanning a Bloomberg screen, picked up the phone and demanded an associate file a complaint in some securities thing. "Just copy Milberg's."

I just assumed that all fungible work is copied. I filed a novel complaint in a class action (written to keep the claim out of the MDL) a few years later and gave a copy to someone at another firm in Word format to use. I assumed everyone shared that kind of stuff. People shared stuff with me. Seemed impolite not to do so. We were both on same side, so it could only help.

What I think differentiates the briefing in Flynn's case is:

1. This is Judge Sullivan, who flies off the handle a lot and doesn't seem entirely stable (Sometimes, it's warranted, like the Ted Stevens case, where he wound up causing a couple prosecutors to lose their jobs; Sometimes it's not -- like when he flipped out on prosecutors during Manafort's trial and had to apologize later);
2. These guys copied verbatim. Everybody knows everybody lifts from other briefs to save time. You can't ethically charge clients to re-engineer that which you can easily copy. But there's an expectation you'll at least reorder the sentences, omit an authority or two... rewrite the thing a bit so it isn't nakedly obvious lifting. Verbatim regurgitation is lazy, and it's daring a firebrand like Sullivan.

I think a complaint (or a contract) is different because the words themselves have legal import, while a brief is an argument about the law. I don't think it's a huge ethical violation (and GGG, I don't know the applicable rules) but I think Sullivan was essentially embarrassing them for copying someone else's homework -- I don't think he's going to report them to the Bar for plagiarism.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

I think a complaint (or a contract) is different because the words themselves have legal import, while a brief is an argument about the law. I don't think it's a huge ethical violation (and GGG, I don't know the applicable rules) but I think Sullivan was essentially embarrassing them for copying someone else's homework -- I don't think he's going to report them to the Bar for plagiarism.

Agreed. But depending on whether you're in notice or fact pleading jurisdictions, complaints can include legal arguments similar to those one sees in briefs.

He strikes me as a very annoyed judge. I don't think he likes his job very much.

Also, Flynn's new legal team is a bunch of scorched earth psychos. Sullivan may be sending a message: "You're doing your client no favors."

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

Agreed. But depending on whether you're in notice or fact pleading jurisdictions, complaints can include legal arguments similar to those one sees in briefs.

Yes, but I don't think there's any shame in copying those. You can copy the language in a brief, too, but you should use quotation marks to show that the words are someone else's, and if you don't do that then you are hiding that fact.

He strikes me as a very annoyed judge. I don't think he likes his job very much.

Also, Flynn's new legal team is a bunch of scorched earth psychos. Sullivan may be sending a message: "You're doing your client no favors."

I think the two are related. Flynn pleaded guilty and then started making a bunch of silly arguments to try to get out of it. Sullivan ripped him a new one for the original crime, and can't be happy to be wasting his time on the more recent stupidity.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

Yes, but I don't think there's any shame in copying those. You can copy the language in a brief, too, but you should use quotation marks to show that the words are someone else's, and if you don't do that then you are hiding that fact.



I think the two are related. Flynn pleaded guilty and then started making a bunch of silly arguments to try to get out of it. Sullivan ripped him a new one for the original crime, and can't be happy to be wasting his time on the more recent stupidity.

One can also simply rewrite the argument. I avoid briefing as much as possible, but where its necessary, if I find a chunk of text in a brief that makes my argument, I'll usually want to bend it to my writing style anyway, so it'll be changed. I also hate string cites, so I'll usually yank a bunch of those. If you're just lifting straightaway, you're a lazy ass. (Sorry, Hank.)

I've only had one client try to undo a plea. It worked out very badly for that person. Flynn's counsel seem to be doing him a disservice along the lines of that being done to Lori Loughlin by her lawyers.

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

One can also simply rewrite the argument. I avoid briefing as much as possible, but where its necessary, if I find a chunk of text in a brief that makes my argument, I'll usually want to bend it to my writing style anyway, so it'll be changed. I also hate string cites, so I'll usually yank a bunch of those. If you're just lifting straightaway, you're a lazy ass. (Sorry, Hank.)

I've only had one client try to undo a plea. It worked out very badly for that person. Flynn's counsel seem to be doing him a disservice along the lines of that being done to Lori Loughlin by her lawyers.

Seems like Flynn is playing for a pardon.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

Seems like Flynn is playing for a pardon.

But Sullivan already extended the sentencing date. Now he’s just made the judge work, which is a violation of the first rule of Defendant Club.