Saturday, July 24, 2021
Parentheticals are all over legal writing. But rarely do folks talk about why (or whether that’s a good thing).
Adding a tidbit of insight or explanation in a parenthetical can do wonders for readers. You can amplify a critical point, provide illuminating examples, and more.
But too many thoughtless parentheticals make this tool worthless. And many legal writers fall into the trap of replacing their own explanation and reasoning about the law with a list of parentheticals.
Let’s start with when legal writers use parentheticals the wrong way.
First, parentheticals are not the right place to include critical points for the first time. Parentheticals are, by definition, an aside. With care, they can bolster and support and clarify. But they are not the place to make your main points for the first time.
Take this example:
“Battery requires intent. Jeremey v. Terry, 324 F.3d 24 (2004) (explaining that transferred intent is appropriate only in cases involving purposeful contact)."
If you’ve never made that transferred intent point before, then don’t expect your reader to see it crammed into a parenthetical. The takeaway here is: Important points should go in regular sentences, not in a parenthetical.
Second, don’t use parentheticals for tangential points that won’t help your reader understand the law, the facts, or your reasoning. In other words: don’t use parentheticals just to pad your legal writing so that it looks more supported. Because folks much prefer a concise, easy-to-read document that focuses on what matters. These tangents or weak points will just distract readers. Have a good reason to add a parenthetical; otherwise, cut it.
Third, avoid lengthy parentheticals. If you have a lot to say, and it matters so much that you want to use up a bunch of document real estate, again, it should be explained by you with ordinary sentences, not parentheticals.
Fourth, avoid repetitive parentheticals. If one parenthetical gets your point across, don’t add them to every other cite just for fun.
So when should you use parentheticals? There are a few common reasons.
First, you want to offer examples from different authorities, and listing them all out in sentences would be excessive. Here you’ve made the point in your sentence and the citations just offer examples that bring your point home. You’ll often start the citation with an “e.g.,” signal to set things up:
“Courts have held a prima facie case is stated in only the rarest of cases, like when a medical doctor has left a device inside of a patient. See, e.g., James v. Taylor, 86 F.2d 310 (9th Cir. 2020) (pliers left in patient’s chest cavity); Sampo v. Medical Executives, 192 Cal. 21 (2017) (medical tape left under the skin during stomach surgery).
Notice that the main point—that the cases are rare and involve things being left inside patients—is made in normal prose. The parentheticals just drive the point home with some vivid examples.
Second, you have an extremely critical point to make about the law, and you want to amplify the force of your points with some more quotes or holdings, and it would be excessive to include them all in your prose. Make sure to only use this tool sparingly, otherwise its power will be lost:
“No court has required a plaintiff to show actual harm before bringing this claim. Belfi v. Hariton Homes LLC, 134 U.S. 45 (2006) (holding that no actual harm has “ever been required in this state”)."
Third, you want to subtly inject in the force of a speaker but don’t want to make it obvious. Or, similarly, you want to let an authority subtly suggest something that you don’t want to outright say yourself. For example, you might want to include some key judges, parties, courts, or language that help add emotion or persuasive force, but coming right out with it would not strike the right tone:
“No court has required a plaintiff to show actual harm before bringing this claim. Belfi v. Hariton Homes LLC, 134 U.S. 45 (2006) (noting that the U.S. Supreme Court has sanctioned counsel for ignoring this rule).
“Under Rule 9(B) of the Local Rules of Appellate Procedure, an appellant’s brief may not exceed 30 pages. Jerry v. Tarkanian, 29 U.S. 329 (2000) (refusing to address nine claims because they were “contained in the portion of appellant’s brief that exceeds the page limit under Loc.R. 9(B)”).
Fourth, if you are citing authorities that readers won’t instantly understand. There can be plenty of good reasons to include a citation even when you don’t want to take up precious real estate with extensive explanations. For example, perhaps you are nearly sure a point will be conceded, so you prefer just to cite a couple of authorities to put the issue to rest.
If you cite a case or other authority and it won’t be obvious how it supports your prose, a parenthetical is a safe bet. Because the last thing you want is to force readers to go look authority up for themselves.
Great, you’ve decided you have a good reason to drop in a parenthetical. Let’s finish with some final tips for crafting the perfect parenthetical.
First, if you’d like to use the participle-format (beginning the parenthetical with an “-ing” word), then vary your participles and choose them with care. There are dozens to choose from, and each offers a different flavor. For example, (holding that the plaintiffs were in the wrong) is not as strong as (rebuking plaintiffs for…).
Second, drop the “-ing” words when a quote or short phrase will do better. Take examples, which often don’t require a participle:
“Courts have held a prima facie case is stated in only the rarest of cases, like when a medical doctor has left a device inside of a patient. See, e.g., James v. Taylor, 86 F.2d 310 (9th Cir. 2020) (pliers left in patient’s chest cavity); Sampo v. Medical Executives, 192 Cal. 21 (2017) (medical tape left under skin during stomach surgery).
Third, the same rules for quoting apply here: Use them only if they are better than your own voice—and even then, just use snippets of the quote unless the full sentence is helpful for some special reason:
“James v. Morel Medical LLC, 255 F. Supp. 2d 55 (Nev. 1999) (holding that a golf cart is not a “vehicle” because it is not a “combustible-fuel” machine).”