Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, April 9, 2024

The Unnecessary Parenthetical (“Parenthetical”)

Lawyers love precedent.  And we love it so much that we often fail to stop and consider why we do what we do.  Instead, we blindly follow what we’ve seen before, even when that precedent is nonsensical.  And that is the case with the unnecessary parenthetical.

The unnecessary parenthetical rears its ugly head in all kinds of legal writing, from legal memoranda to appellate briefs and even court opinions.  It looks something like this:

Plaintiff Octavius Doolittle (“Doolittle”) sued his employer Sparks Industries (“Sparks”) for breach of contract.  The trial court (“trial court”) dismissed the action for failure to state a claim.

Sometimes it takes a more egregious form including the word “hereinafter”:

Plaintiff Octavius Doolittle (hereinafter “Doolittle”) sued his employer Sparks Industries (hereinafter “Sparks”).  The trial court (hereinafter “trial court”) dismissed the action for failure to state a claim.

While parentheticals like these are traditionally found in contracts and estate-related documents like wills and trusts, where the drafter must leave absolutely nothing open to interpretation, advocates should pause before inserting them into other forms of legal writing.[i]  Generally, the purpose of these kinds of parentheticals is to clarify or define for the reader how certain individuals or entities will be referred to throughout the rest of the document.  And that’s great if an advocate wishes to shorten a lengthy name to an acronym, such as shortening the Sunny Valley Public School District Number 407 to SVPSD, or to refer to a named individual by that person’s relationship with another, such as referring to Octavius Doolittle’s boss Patrice Longfellow as Boss.  But the parenthetical serves no purpose in the examples above if there is only one person involved in the case with the last name Doolittle or one party with the word Sparks in its name, and, presumably, there is only one trial court.  No reasonable reader is likely to be confused by a reference to the trial court or to Doolittle or Sparks after the initial identification of those parties, and adding the parenthetical simply takes up space and interrupts the flow of the writing.

When these kinds of parentheticals are useful, they should be kept as short as possible.  There’s no need to include either the word “hereinafter” or quotation marks.  Instead, an advocate should simply place the alternate reference within parentheses following the initial introduction of the party or item described:

While working for Sparks, Doolittle was the assistant to Patrice Longfellow (Boss).  Boss worked for Sparks from May 1998 through December 2009.

 

[i] Advocates may want to pause before using these kinds of parentheticals in any legal writing, including contracts and estate documents.  A recent study from MIT found that parentheticals inserted into the middle of sentences, which the researchers called “center-embedded structures,” are wildly prevalent in legal writing and make “text much more difficult to understand.”  Anne Trafton, Even Lawyers Don’t Like Legalese, MIT News (May 29, 2023), available at: https://news.mit.edu/2023/new-study-lawyers-legalese-0529. The study also revealed that these center-embedded structures are not as necessary as many believe, and contracts that were redrafted without them were perceived as equally enforceable to those that included them.  Id.

https://lawprofessors.typepad.com/appellate_advocacy/2024/04/the-unnecessary-parenthetical-parenthetical.html

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