There is no denying that we attorneys are increasingly time pressed. And no one disputes that we are all entitled to a vacation. There was a time when taking a vacation meant being truly unavailable, with the “out of office message” having real meaning. Today, thanks to iPhones, improved cell service and demands from similarly armed clients with time sensitive demands, whether attorneys are in the Gobi Desert, on Easter Island, on the golf course, staring out at the Atlantic Ocean or sitting in their own backyard, they can respond and send emails, and draft or review documents as attachments or links. Actually achieving a successful total “blackout” from work would be the subject of another article examining the need of attorneys to be responsive to clients and their colleagues and, in some instances, an inability to shut off from work because they either lack the self-control to do so or believe that they, and they alone, are indispensable to their firms and clients.
While walking down the hallway, waiting for an elevator (indeed, even while riding in an elevator), walking down in the street, waiting for the traffic signal to turn, waiting in court for a case to be called, down time at mediations and depositions, and even while on telephone calls while being placed on hold, lawyers feel compelled to check and send emails, and review and send sensitive documents. Some attorneys may proudly think that they are being efficient in displaying their masterly talents by multi-tasking in this manner. However, such “Masters of the Universe” attorneys fail to realize that, although they are undeniably increasing their speed in responding, they are also increasing their risk in making, or not catching, errors, which, once sent, will be discovered at some later date. Multi-tasking can lead to multi-errors.
The focus here is to address one of the potential pitfalls which can result from the entirely reasonable interest by attorneys in drafting quickly and demonstrating their fast turnaround time, by cutting/copying and pasting from earlier works and then presenting the “new” document to clients, colleagues, adversaries and judges.
In sum, in today’s world of legal practice, it is the exception, rather than the rule, when an attorney takes out a pen and draft an affirmation or memorandum of law. The singular focus of pen to paper is no longer.
Instead, lawyers, especially young attorneys, do their drafting on a computer. Some of the newer attorneys, would as much expect a partner to take out a quill pen as he or she would use a ballpoint pen, and draft a brief. We are no longer talking about the wave of the future. The future is here and the days of using pen and paper for drafting are now in our rear view mirror. We all therefore need to be especially careful when copying or cutting and pasting from earlier works.
Any number of errors can result from drafting and sending out work too quickly, without sufficient review, including autofill errors in sending the email to the wrong recipients1 and overreliance on auto-correct which, if not closely watched, can create, rather than correct, errors2.
Put simply, we all recognize that copying/cutting and pasting is designed to save time, allowing attorneys to copy comments and narratives and paste it into a new report. However, if the information being copied is not carefully edited, reviewed and updated, the lawyer will advertently introduce errors into the new report.
If there is one such cutting and pasting errors gives new meaning to the phrase “cookie cutter complaints”. Consider, for example, the comment by Federal District Judge Paul D. Borman, reviewing nearly identical pleadings filed by plaintiff, granting defendant’s motion to dismiss:
“In each of these cases, Mr. Greenwood filed essentially the same ‘cut and paste,’ cookie cutter complaint, each alleging the very same counts, and each repeat with the same spelling, typographical and party gender and number errors. This slip shod litigation practice does not improve during the course of the lawsuits”3
Often, the errors resulting from copying/cutting and pasting from other documents can be minor to the main struggle and do not substantially change the effect of the written work. For example, if the source document refers to plaintiff and the document being submitted concerns plaintiffs one can argue that no damage has been done as the meaning and sense has not changed. That may well be true but that approach ignores larger consequences from such seemingly trivial errors. By failing to catch these mistakes in the rush to copy/cut and paste, the attorney who “signs off” from the document is signaling to his/her colleagues, adversaries, clients and any judge, law clerk or law secretary who reads the papers, that the attorney, and the law firm on his behalf the papers are submitted, either does not care about the error or does not even know the error was ever made. That is no way to advance within a firm, keep or gain clients or impress judges.
Moreover, adversaries in law are always sizing up their opposite number, checking out the strengths and weaknesses. The lawyer may conclude that opposing counsel is inattentive and therefore decide to take the case further, go a few more rounds in litigation and perhaps proceed to trial, having been given reason to believe that the opposing counsel will continue to fail to carefully review their work, and therefore may make other errors, one of which may cause a material change in the overall case. Copying/cutting and pasting errors may therefore cause negotiations in litigations to be prolonged because one side believes the other being so busy and too, make other errors. The apt phrase is, “the devil is in the details” and cutting/copying and pasting errors, however innocent they may appear to be, can cause hellish results.
In Alston & Bird v. Mellon Ventures II, L.P4, several large venture capital firms through the law firm for $6.3 million over an alleged “cut-and-pace” error made in an investment contract. The venture capital firms alleged that the law firm incorrectly drafted a paragraph that dealt with how the parties were to be compensated during liquidation. The error allegedly resulted from the law firm cutting and pasting the clause from an older contract prior financing of the company. The provision dealt with how the parties were to be compensated during litigation and resulted from cutting and pasting the wrong words into the contract. Judge Mikell of the Court of Appeals of Georgia noted:
“It is undisputed that, late in the process [of drafting], someone with Alston & Bird ‘cut and pasted’ the tag-along clause from an older contract for prior financing of the company. The transferred paragraph was not appropriate for the economics of the new financing. No one caught the mistake until after the closing”. (emphasis added)5
It is not only clients and adversaries who are not forgiving of cutting and pasting errors, Judges too, are less than forgiving of counsel who fail to proofread. Note the decision of the 3-court of Appellate Military Judges in United States v. Pena6:
“The appellant’s brief asks for relief in part ‘to send a clear message to the 17th Training Wing.’ The 17th Training Wing did not process this case. We have seen similar cut and paste errors in more than one brief from the Appellate Defense Division in recent months. We advise counsel to lend more attention to their briefs.” (Emphasis added)
We can hardly expect Judges to take our work seriously if we don’t.
When cutting and pasting is done correctly, which is clearly most of the time, the billing for such may still cause the attorney to be called onto the carpet. Just note the introductory comments by opposing counsel in their appellate brief to the California Court of Appeals in Markey, III v. Club8:
“Two hundred and twenty hours! The equivalent of one lawyer working over five weeks on nothing else. It should not take any lawyer over five weeks to prepare what was essentially a routine discovery motion to compel and an equally routine opposition to a discovery motion to compel discovery-especially lawyers as skilled as Respondent’s counsel, Morrison & Forster-lawyers who were already intimately familiar with the facts and issues. Also, many of the arguments included in the Respondent’s papers were earlier identical or virtually identical, and simply ‘cut and pasted’ from one section to another, further reducing the time needed for completion.”
When witnesses sign affidavits which contain cutting and pasting errors, they can reasonably expect their credibility to be questioned, and for there to be consequences for those responsible for creating the error and then not catching it until after the affidavit was submitted and the error is caught by their adversary. Owning up to the mistake may make the attorney understandably uncomfortable, but may be necessary to explain how the error occurred:
“In his Memorandum of Supplemental Points and Authorities in Support of Motion to Suppress, the defendant argues that a drafting mistake by Lub in the affidavit’s penultimate paragraph provides additional reason to render the Leon ‘good faith exception’ inapplicable in this case. As Detective Lub explains in his attached declaration, in drafting the affidavit, he used an affidavit he had done in another case as a shell, and made a cut and paste error in borrowing certain language, resulting in a reference to ‘Robert or Christine Duncan’ where he intended to refer to the defendant by name, Declaration of Marnix Lub at 3. One such drafting mistake in a several page, single-spaced affidavit written under investigative time constraints in no way indicates any disregard for the truth on Lub’s part. Nor does the fact that the magistrate signed the affidavit on the same page indicate that Lub was not entitled to rely on the magistrate’s determination of probable cause. The paragraph immediately preceding this paragraph had the defendant’s correct name and the correct address that was the subject of the sought-for search. Under the circumstances, such an error does not detract from the probable cause determination made by the magistrate or call into question whether the magistrate had a substantial basis for issuing the warrant.”9
See also the affidavit by the detective, explaining why his original affidavit referred to Robert of Christie Duncan, rather than plaintiff Tom Norigea:
“In drafting my affidavit, I used an affidavit I had done in another case as a shell, borrowing some text that I would need for the affidavit I was drafting. In doing so, based on my review of the signed affidavit, it appears that I made a cut and paste error in the second to last paragraph of the affidavit, by referring to ‘Robert or Christie Duncan’ who were not involved in this case, instead of Tom Noriega. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.”10
The problem is compounded when attorneys hurriedly, rely on copy and paste work containing errors from outside their firm, for example, from doctors and hospitals. Patient electronic health records (“EHR”) are themselves often copy and pasted by physicians. A study of 100 randomly selected hospital admissions found copied text was found in 78% of the medical residents sign-out notes, written after their shift ended, and in 54% of the patient progress notes11. The errors in cutting/copying and pasting medical records can produce disastrous or nonsensical findings which, if cited and relied upon by attorneys, can result in disastrous or nonsensical conclusions:
“The HER copy and paste feature is notorious as a source of errors. It is designed to save time, allowing physicians to copy narrative from a prior visit and paste it into new visit notes. However, if the copied information is not carefully edited and updated, the physician will inadvertently introduce errors into the record. For example, in one reported case, the record of a patient hospitalized for many weeks because of complications from surgery indicated each day that this was ‘post-op day No, 2’ because the note was never edited. In another case, the statement “Patient needs drainage, may need OR” appeared in notes for several consecutive days, even after the patient successfully underwent a procedure to drain his abscess. In yet another instance, a patient’s EHR indicated erroneously that he had a below-the-knee amputation (BKA) because of voice recognition dictation system entered ‘BKA’ into the record of the real problem-diabetic ketoacidosis, whose acronym is DKA.”12
It is therefore no wonder that the American Health Information Management Association issued a statement in 2014 calling for the copy/paste functionality to be permitted only in the presence of strong technical and administrative controls which include organizational policies and procedures, requirements for participation in user training and education, and ongoing monitoring.13
No one wants to hire the attorney who blindly relies on such obviously inadvertent, but also obviously wrong, entries copied and pasting by a busy doctor or nurse, without recognizing the errors and advising their own experts (to say nothing of their own insurers and clients). Such inadvertent errors, undetected, can result in uncomfortable moments for the attorney and their experts, come the time of trial or if called upon by clients or insurers to explain why they fail to pick up such sloppy cutting/copying and pasting errors in those records on which they chose to rely.
The solution is both evident and obvious. Copying/cutting and pasting are here to stay as it is a true time savings and have several undeniable advantages, noted above. However, it also requires an important extra step, namely a careful, not cursory, review, before pressing “send”. If that is done, copying/cutting and pasting can continue to be an effective tool, especially for those lawyers who begrudge there are only 24 hours in each day. However, where there is only a fleeting review, a potential of a disaster can easily be created. Let that not happen to you, on your watch, or at your firm.
Robert D. Lang is the Chairman of D'Amato & Lynch's Casualty Practice Group, and is the "bet the farm" attorney in New York for a number of significant national clients. For over 40 years, he has been litigating in the state and federal courts of New York handling complex arbitrations and resolving heavy cases at mediations. A lawyer who "runs to the sound of gunfire," Mr. Lang steps up and tries the tough cases as the first-chair trial lawyer, often in difficult venues. He has long recognized the economics of law with the costs of litigation impacting clients and, as an active ADR proponent, skillfully navigates matters to successful settlement in cases sometimes thought to be insoluble. His broad range of cases include personal injury and products liability suits, some with catastrophic injuries; construction disputes of every grade and order; representing attorneys, accountants, psychologists and other professionals; as well as handling and resolving partnership-shareholder controversies. A leader in national and local bar associations, chairing committees and leading discussions with his peers, his articles are frequently published in leading law reviews and bar journals throughout the country. Mr. Lang is a Fellow of the Litigation Counsel of America.
1 Lang, The Double-Edged Sword of Autofill; The Need For Speed While Avoiding Errors, 88 N.Y.S. Bar. J. 25 (March/April 2016).
2 Lang, From ‘Sea Sponge’ to ‘Sua Sponte’; The Mixed Blessings Of Auto-Correct, 87 N.Y.S. Bar. J. 28 (July/August 2015).
3 Pakulski v. Clearvue Opportunity XXII LLC, 2013 WL 1869102-103 (E.D. Mich. 2013).
4 307 Ga. App. 640 706 S.E. 2d 652, 10 FCDR 4080 (2010)
5 307 Ga. App. at 655, 706 S.E.2d at 667, 10 FCDR at 4095.
6 7518669, A. F. Ct. Cir. ABP (2015).
7 Supra at 1518670
8 2005 WL 1397717 (Cal. ABP 2 Dist. 2005) (Appellate Brief).
9 United States of America v. Noriga, 2005 WL 5840047, 5840053 (E.D. Cal. 2005) (Plaintiff’s Trial Motion and Memorandum).
10 2005 WL at 5840057.
11 Wrenn, Quantifying Clinical Narrative Redundancy in an Electronic Health Record, 17 J. Am. Med. Informatics Ass’n 49 52 (2010); Hoffman, Go Big Data and Big Data Quality Problems, 21 Conn Ins L.J. 289, 293 (2014-2015).
12Hoffman, supra, 21 Conn. Ins. L.J. at 293.
13 Am. Health Info Mgmt. Ass’n. Appropriate Use of the Copy and Paste Functionality in Electronic Health Records (Mar. 17, 2014). https://library.ahima.org/xpedio/groups/public/documents/ahima/bok1_050621.pdf; Hoffman, supra