Thursday, January 19, 2012

Guest blogger Nick Wagoner on "Common Parenthetical Pitfalls"

Please welcome Nick Wagoner who writes for a great new blog called CircuitSplits.com that provides timely, insightful commentary on federal appellate issues headed for the Supreme Court. (It's also an excellent resource for legal skills profs looking for moot court problem ideas).  Nick is an associate with the Houston law firm Rogers, Morris & Grover, L.L.P., where his practice focuses on civil-rights litigation and public law.

This is the first installment of a 3 part series from Nick on writing effective citation parentheticals in legal briefs.

Common Parenthetical Pitfalls (Part 1 of 3)

I just finished reading Ross Guberman’s new book on legal writing, Point Made: How To Write Like the Nation’s Top Advocates, which I would highly recommend to lawyers and law students alike. The book is chock full of helpful writing tips presented in a conversational, “show-and-tell” style more closely resembling a casual series of blog posts rather than a stuffy treatise on legal writing. I found the chapter on parentheticals particularly insightful since many students, professors, and attorneys, myself included, are not completely comfortable with exactly when and how this versatile tool should be used in legal writing.

Scan through a handful of opinions and law review articles and you will quickly notice that many of them either misuse parentheticals or simply omit them entirely. Treating parentheticals like an afterthought, however, is a missed opportunity to more effectively inform or persuade your intended audience. Justice Ginsburg once wrote that one of the items on her “check list for a first-rate brief” is the liberal use of parentheticals (no pun intended) “offering the readers a clue why they are there” by “show[ing] the relevance of the citation.” Ruth Bader Ginsburg Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 568 (1999). Senior Judge Leonard Garth of the Third Circuit expressed an even deeper appreciation for the parenthetical when he proclaimed, “The single, easiest way to make a good brief better is by the judicious use of parentheticals following case citations.” Leonard I. Garth, How to Appeal to an Appellate Judge, 21 Litig. 20, 24-66 (Fall 1994).

So how do you cure a poorly drafted parenthetical? This first thing to do is to learn how to diagnose it. Although parentheticals can be misused in a variety of ways, here are two of the most common parenthetical pitfalls to avoid:

1. Lengthy Parentheticals

Long-winded parentheticals can turn fluid prose into a choppy mess. Any value added by a long parenthetical will likely be lost if the reader forgets what the preceding sentence said by the time they make it from left parenthesis to right parenthesis. Sure, judges, editors, and even law students are capable of holding their train of thought. But doing so is not particularly pleasant. Short and sweet parentheticals are much more pleasant to read and keeps the reader's focus on your core arguments. 

As a general rule of thumb, consider limiting the length of parentheticals to less than or equal to the length of the preceding textual sentence. I would also recommend reading briefs to the Supreme Court to get a better feel for how skilled advocates use parentheticals to communicate complex, nuanced ideas in a concise manner. Or, if you must, think of parentheticals as Twitter—140 characters or less!

2. Duplicative Parentheticals

This pitfall refers to parentheticals that simply echo what was already communicated in the preceding sentence, adding little or no value to your sentence. See TheFreeDictionary.com/echo (defining the word “echo” to mean “[a] repetition or an imitation”). Duplicative parentheticals reveal an author’s discomfort with their ability to accurately paraphrase the law. Parentheticals should generally not follow direct citations or “see” citations. If you are concerned about unwittingly trimming out important terms of art when paraphrasing a particular law, simply quote the source directly and drop the parenthetical. If courts have stated a particular proposition in a variety of ways, quote the case that most clearly states your position and then resist the urge to quote every other variation of that position in parentheticals. Think of the parenthetical as a tool for making a sharp, laser-like point about the law that is not obvious from the preceding sentence, rather than as a blunt instrument for making duplicative, shotgun-blast arguments at the end of a sentence that may or may not appeal to the reader.

3. Example

Consider the following parenthetical, which helps illustrate the common pitfalls discussed above:

Although all reasonable inferences should be drawn in favor of the nonmovant, nonmovants cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little v. Liquid Air Corp., 37 F.3d 1069, 1974 (5th Cir. 1994) (“This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, by ‘conclusory allegations,’ Lujan, 497 U.S. at 871-73, 110 S.Ct. at 3180, by ‘unsubstantiated assertions,’ Hopper v. Frank, 16 F.3d 92 (5th Cir.1994), or by only a ‘scintilla’ of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994).”)

Now that we know how to diagnose a poorly written parenthetical, stay tuned for Part II, entitled “Crafting the Perfect Parenthetical,” in which we will explore how to cure such parentheticals.

(jbl).

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