A while back, I had a debate with Peter Friedman of Case Western Reserve Law School (whose post has since disappeared down the black internet sinkhole, but whose words live on in the comments to my post) about the lawyer as plagiarist. My argument is that a good lawyer crafts the argument, the rhetoric, the point with which we seek to persuade the court. His was: why reinvent the wheel when you don't have to?
There are now businesses that send blind emails to lawyers offering to do the research that clients believe they are paying us to do. Outsource and leverage, using some otherwise unemployed kid in a boiler room to do research. Maybe the kid is a lawyer. Maybe not. Who would know, since it's all virtual. Then charge it off to the client as if you did it yourself, and making money on the spread between what you pay the virtual research company and what you can get out of the client.
Of course, no one forces a lawyer to leverage the outsourced work, and there is no rule that the savings can't be passed along to the client. But then, if the work is going to be done by some faceless, nameless basement dwelling drone, why does the client need you?
Another alternative has appeared in the cottage industry of business feeding off the carcass of the legal profession called Briefmine. I was invited to give it a look by its founder, Harry Zeitlin, who, to his credit, took a big risk letting a curmudgeon like me into his shop to look around. That said, I didn't like what I saw.
Briefmine is a highly descriptive name. The business model is to take other people's briefs, put them online in searchable pdf format, and sell access to them. From my quick spin through, the briefs now in his library come out of the 9th Circuit, Supreme Court and about 14 state jurisdictions. I suspect Harry will be adding whatever he can if this pans out. If you've filed a brief in one of these courts, what Harry is selling is your work product, your intellectual property. Your brief.
The interface itself reminds me of searching Lexis back in '93, neither pretty nor easy to use, but if you put in the effort, sufficient to get the job done. As with all legal searching, it suffers from the limitations of language, binary in approach and dependent on searching for the language the lawyer used in his brief. If someone used an odd construction, then no amount of wishful thinking is going to make fuzzy wuzzy happy. But that's the nature of searching legal databases, so it's nothing new.
The question that kept rumbling through my mind was whether this would be used as a starting point for research and writing, or a chance to steal someone else's work and pass it off as your own. If the former, then it's what lawyers have always done, whether from their own prior work, the work of friends or colleagues who shared their briefs or court opinions.
Zeitlin's explanation of what Briefmine offers takes the high road.
BriefMine provides a database of legal briefs powered by natural-language search. We focus on briefs because we believe that these documents represent the perfect medium for jump-starting the research process. Briefs highlight the main argument a lawyer makes throughout his or her case. By allowing you to find these briefs, we help you locate arguments that are highly relevant to your current work. Chances are that if you've found a pertinent legal brief, you've found a trove of other valuable information including citations, case law, and rehetoric [sic] that can be used to focus and improve the research you are creating. At BriefMine, we aim to assist you by unlocking the power of the legal brief!But saying that it should be used as a means of "jump-starting the research process" doesn't preclude the ease with which argument in briefs can be lifted wholesale. If that's how it's used, then it's a tool for Peter Friedman's "plagiarism is good" approach.
Plagiarism isn't good. It's not good from an ethical perspective. It's not good from a practical perspective. Good lawyers craft arguments specific to their cases, sui generis, rather than generic. For bad lawyers, close is good enough. For the worst lawyers who can't be bothered to change the names before stealing other people's work, this is a panacea. The problem isn't that Briefmine can't be used properly, but experience suggests that it will be used as well or poorly as the lawyer using it. And if it works for the worst among us, that's how it will be used.
The second issue is that Zeitlin is selling OPB. Granted, he's put it together, made it searchable, and added value, but the core of the value is the work of other people, who have neither agreed to have their work product sold by someone else nor enjoy the backend fruits of their labor. While it's not quite stealing, since the briefs become part of the public record upon filing with the court, it's still less than legit to have a brief submitted for the purpose of arguing a cause end up as the fodder for someone else's profit.
Of course, it's not like the duopoly, Lexis and Westlaw, aren't profiting off briefs as well, but then nobody expects either to care in the slightest about using and abusing lawyers. After all, that's been their business model forever, taking opinions by judges who are paid for by public monies and selling them back to lawyers and the public.
The final concern is one that some will find significant and others won't give a hoot about. Who says every brief is any good? Was it well-written, well-researched, or a hack job? Not only does Briefmine offer opportunity to the lazy lawyer, but it may perpetuate bad lawyering on a substantive level as well. If your client isn't thrilled at the notion that he's paying you to be that great lawyer you claim to be in your carefully crafted internet persona, imagine his chagrin when he finds out you not only copied your work from someone else, but copied bad work as well.
My guess is that for competent lawyer who care about their clients, Briefmine won't offer enough to make it worthwhile. Doing the research on our own, crafting arguments for the purpose of presenting a particular case in its best possible light, is what we do. We tend not to like OPB's enough to want to glom their work, and we enjoy the research, the mystery of putting together a brief better than any that has ever before existed.
But there will be a group for whom Briefmine is a quick and dirty way to get your work done without breaking a sweat, and that will happen on the backs of lawyers who created the work product only to see it stolen by lawyers who couldn't carry their briefcase.
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Source: http://blog.simplejustice.us/2013/04/13/selling-your-briefs.aspx?ref=rss
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