Two decisions in one week on 'judicial plagiarism'. At home, Cojocaru v British Columbia Women's Hospital and Health Centre, 2013 SCC 30, a medical malpractice case. The Chief Justice, for her fellow Supremes, held that while judicial copying is 'a longstanding and accepted practice', it cannot be taken to the point where a reasonable member of the public, apprised of the circumstances, would conclude that a judge had, in reproducing or incorporating large portions of counsel's submissions, abdicated the judicial function. It will be difficult, however, to show that a judge has not acted with the presumed integrity and impartiality. On the Cojocaru facts, it was plain that the trial judge had adopted a great deal of the plaintiff's brief in his decision, but had also rejected some significant aspects. The judgment in favour of the plaintiff could not, then, be set aside for excessive judicial copying. There were, however, bigger problems: the judge had made a palpable and overriding error in his analysis of the causation of the infant plaintiff's injuries in finding the doctor liable. The judge did not screw things up, though, in determining that the doctor was liable for failing to obtain the informed consent of the plaintiff's mother or in his assessment of the quantum of the plaintiff's damages.
Meanwhile in another part of the forest, the English Court of Appeal addressed similar issues in Crinion v IG Markets Ltd,  EWCA Civ 587. There, the trial judge in an action on an allegedly unauthorised debt to a securities dealer had largely adopted the closing submissions of the dealer's counsel as his judgment. The judge added a little prefatory material of his own, as well as making some 'mechanical changes' to make the submissions look more like a decision and some stylistic edits. There were also insertions of substance. While counsel had provided 'an excellent piece of work' and the judge had not adopted it holus bolus, some 94% of the final product represented the barrister's work. To Lord Justice Underhill's mind, this was 'thoroughly bad practice'; it was not OK to reproduce the lawyer's work to such a great degree, even if the judge thought it correct in all respects. 'Appearances matter', in the lord justice's view. It can be appropriate to rely on counsel's account of the facts or analysis of the issues, or even the 'actual dispositive reasoning' in submissions -- but not to such an extent that it may begin to look as though the judge has not exercised independent judgment in reaching his or her conclusion. While the judgment below was clearly defective from that point of view, Underhill LJ could not say, however, that the wrong conclusion had been reached on the facts and the law, so the appeal was dismissed on the merits. He came to this conclusion only 'with hesitation' but on the grounds that the judge had 'performed his essential judicial role and that his reasons for deciding the dispositive issues in the way that he did [were] sufficiently apparent' and arrived at through independent judgment. Close, though.