Sunday, January 29, 2012
In this second post from guest blogger Nicholas Wagoner (of CircuitSplits.com), we learn more tips for writing effective parentheticals in briefs. For those of you who missed Part 1, you can find it by clicking here.
Crafting Perfect Parentheticals (Part 2 of 3)
Earlier this month in a piece entitled “Common Parenthetical Pitfalls,” we learned how to diagnose poorly drafted parentheticals. Today we shift our focus to studying ways to cure poorly drafted parentheticals, as outlined in Ross Guberman’s new book on legal writing, Point Made: How To Write Like the Nation’s Top Advocates.
So what does it take to craft perfect parentheticals? In Point Made, writing guru and former chief judge of the Third Circuit, Ruggero Aldisert, boils it down to three key ingredients:
(1) the parenthetical must tell the reader why you are citing the source if it’s not clear from the preceding sentence,
(2) the parenthetical must show the reader where the case fits into the theme or focus of the piece as a whole, and
(3) the parenthetical must do so in a clear and concise manner.
A thoughtful mixture of these three ingredients, Judge Aldisert explains, should produce a parenthetical in one of the following three flavors:
1. A “participle parenthetical” that begins with an “-ing word” (e.g., “holding”).
For example, in Contrerasv. Attorney General of the United States, the Third Circuit wrote, “Panels of the Seventh Circuit have issued conflicting decisions on the matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (recognizing due process right) with Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (denying due process right).” No. 10-4235, at n.3 (3d Cir. Jan. 4, 2012).
Point Made encourages readers to feel free to “depart from the -ing format when you’re simply providing various examples of the same thing,” as the following case illustrates:
Discrete groups in our society often have been excluded from jury pools. See, e.g., Taylor, 419 U.S. 522 (1975) (women); Thiel, 328 U.S. at 219 (daily wage earners); Hernandez v. Texas, 347 U.S. 475 (1954) (Mexican Americans); Smith, 311 U.S. 128 (African Americans); Norris v. Alabama, 294 U.S. 587 (1935) (same).
Brief of the NACD, ACLU, and NJP as Amici Curiae in Support of Respondent Smith, Berghuis v. Smith, 130 S. Ct. 1382 (2010) (No. 08-1402), available at http://www.aclu.org/files/assets/amicus_brief.pdf.
2. A parenthetical that consists of a single-sentence quotation.
In his appellate brief in United States v. Martha Stewart, defense attorney Walter Dellinger demonstrates how to effectively use this form of parenthetical:
To have “waived” a Crawford claim, Stewart would have to have foreseen the most significant Confrontation Clause ruling in the last half-century, but nevertheless deliberately (and irrationally) decided to ignore core constitutional violations that substantially prejudiced her. Not only is there no evidence to support such a supposition, this Court has emphasized how unrealistic it is. See Bruno, 383 F.3d at 78 (“[O]nly a soothsayer could have known with any certainty that [Crawford] would change the legal landscape.”); United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (“[P]enaliz[ing] defendants for failing to challenge entrenched precedent . . . would . . . insis[t] upon an omniscience . . . about the course of the law we do not have as judges.”).
Reply Brief of Defendant Martha Stewart at 30–31, United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (Nos. 04-3953(L)-cr & 044081(com)-cr), available at http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=16218.
3. A “hybrid parenthetical” that alternates between the two.
In Gill v. JetBlue Airways Corp., the court uses the “hybrid” parenthetical form to great effect in the following passage:
District Courts within the First Circuit have generally adopted the Hodges approach, holding that “service” includes activities peripheral to point-to-point transportation itself. See Chukwu v. Board of Dir. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995), aff’d mem., 101 F.3d 106 (1st Cir. 1996); DeTerra, 226 F. Supp. 2d at 277; Seymour v. Continental Airlines, Inc., 2010 U.S. Dist. LEXIS 105980, 2010 WL 3894027 (D.R.I. 2010). Even those courts that have found particular activities to be outside the scope of “services” contemplated by the statute have done so through reasoning that is consistent with the Hodges standard. See Somes v. United Airlines, Inc., 33 F. Supp. 2d 78, 82-83 (D. Mass. 1999) (holding that the in-flight provision of medical equipment is not a “service” because it is not a “bargained-for or anticipated” element of air travel); Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28, 39 (D. Mass. 2002) (same).
Civil Action No. 10-11454-FDS (D. Mass. Dec. 14, 2011). Notice how the following parenthetical (1) tells the reader why Somes is cited (i.e., to show that Gill and Somes rely on the same legal standard even though they reach seemingly inconsistent outcomes), (2) shows where the case fits into the focus of the court’s opinion (i.e., it acknowledges seemingly inconsistent precedent and explains why this is in fact not the case), and (3) conveys these nuanced points in a clear and concise manner.
To recap, in Part I we looked at “common parenthetical pitfalls” before learning how to “craft the perfect parenthetical” in Part II. Stay tuned for Part III, which will consist of a list of top “parenthetical starter words.”