by Richard W. Millar, Jr.

For those who were born with an iPhone holster on their diapers, it must be hard to visualize how technology has changed the practice of law. For those, like me, who were born in the golden age of radio, the challenge of keeping up with technology is more difficult than keeping up with the changes in the law.

When I started practicing, letters were typewritten with carbon copies, I dictated either to a secretary who took shorthand or on a Grundig Majestic reel-to-reel recorder that was the size of a small nightstand. The quickest way to earn a secretary’s enmity was to suggest a minor change on a letter or pleading that had multiple carbon copies.

Then the firm acquired a thermofax machine which looked like a belt sander but which could make copies of letters and pleadings. It didn’t have the unique smell of mimeographing which could produce a pleasurable but momentary high, and the copies would eventually fade into nothingness which, at least to my mind, defeated the purpose.

Sometime in the mid-70s, we got Mag Card typewriters which typed up a storm but made the secretarial area sound like a constant exchange of small arms fire.

Now all practitioners have computers and access to artificial intelligence that may someday exceed human intelligence, if it hasn’t already.

And then came the pandemic and remote working, which has, by necessity, forced me to learn more about Microsoft Word than I ever needed or wanted to know.

Including how to cut and paste.

I was certainly behind the curve on cut and paste, and utilizing it for an entire document such as an appellate brief had never occurred to me.

Until now.

One Joshua L. Thomas, a lawyer in Chadds Ford, Pennsylvania represented a couple of men who were hoping to avoid repaying a Small Business Administration loan. They sued the SBA, the U.S. Treasury Department, a collection agency, and others in state court. The action was predictably removed to federal court. The defendants moved for summary judgment, which was granted. Again predictably, they appealed to the Court of Appeals for the Third Circuit where their case went even further south starting with the court’s opening sentence: “Almost two decades ago, this [c]ourt declared that ‘[a]n appeal is not just the procedural next step in every lawsuit,’ and the decision to challenge ‘an order of the District Court is not a matter to be taken lightly.’ [Citation.] Today we reemphasize these truths.”

It seems that Mr. Thomas’s appellate brief was a copy of his brief in opposition to summary judgment which was “copied and pasted into his appellate brief with minor changes such as swapping ‘Defendant’ for ‘Appellee.’”

The court tumbled to the problem by the second paragraph of Mr. Thomas’s brief noting that, while it began “with a proper introductory sentence . . . it quickly [went] awry in the next paragraph,” which said that the district court has jurisdiction instead of had. The next sentence said that venue is properly in district court. “This second use of the present tense, denoting the wrong trial court, presages what comes after, which belies the notion of an honest mistake.”

The fact that “counsel’s fifteen pages of ‘argument’ do not mention how the district court erred . . . left us with the suspicion that something was amiss with counsel’s brief. Unfortunately, our suspicions were confirmed.”

Then the court did something that I, at least, have not seen before: it attached, as Appendix A, a copy of the trial court brief and, as Appendix B, a red-lined comparison of the appellate brief.

The court concluded that, “It is not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.”

The summary judgment was affirmed and a motion for Rule 38 sanctions was granted with “responsibility for payment on the lawyer.” Which leaves me with Millar’s Motto #17:

As you cut, so shall you be pasted.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.