children little secret

I am sorry for my lack of postings in December.  I was enjoying one of the non-financial benefits of being a professor—a long Christmas break!  I am kicking off the new year with postings on how to draft effective explanatory parentheticals for your citations in your motions and briefs.  This post and the next one will focus on the P+P Principle (which I intentionally made ambiguous so you would continue reading).

Why Blog on Parentheticals?

In addition to needing new material for January, I think that many attorneys don’t understand that effective parentheticals make writing clear, concise, and credible.  A well-written parenthetical, for instance, concisely explains the relationship between the stated proposition and the cited authority and directs a judge only to the portions of the cited authority that support the proposition.

Good Example: For a tortious interference claim, improper conduct includes disclosing trade secrets.  See Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853, 859–61 (Ohio 1999) (reversing grant of summary judgment for defendants where evidence showed that defendants used “information protected as trade secrets”).

Consider a legal world without parentheticals.  (A scary thought for me.)  In that world, a motion or brief would have too many cases discussed in the text.  Judges do not want a book report on multiple cases.  As stated by Judge Gerald Lebovits, “few things [are] more boring than . . . page after page of case discussion[s].”  By the end of the case discussions, a judge thinks, “who cares?”

Despite the usefulness of explanatory parentheticals, some judges and attorneys dislike them.  After reading hundreds of parentheticals, I now know why—many parentheticals are poorly drafted.  The parenthetical below is from a real brief filed in the Ninth Circuit.  Instead of including a focused parenthetical, the attorney used the parenthetical to discuss the fine details of the cited case.  If you want to annoy your judge, draft a similar parenthetical.  But if winning is your goal, keep reading to discover the secret to drafting parentheticals that persuade.

Image - Bad Parenthetical

The Secret Revealed: The P+P Principle

Before you include an explanatory parenthetical with a citation—and before you even think about including one—you must understand the P+P Principle, which determines the content of any parenthetical.  The P+P Principle is fairly straightforward (but sometimes difficult to apply): the content of a parenthetical depends on the text preceding the cited authority and the purpose for including the parenthetical.  Because the text preceding a citation is the most important factor, I will address it first.

The preceding text determines whether a parenthetical should contain a complete sentence, one or two clauses, a short phrase, or one word.  It also determines whether a parenthetical should include a full or partial quotation, the holding and reasoning of the case, or only the facts of the case.  When read together, the preceding text and the content of a parenthetical should provide only the information that is necessary so that a judge will understand—and accept—the rule or argument without having to read the cited authority itself.

The P+P Principle in Action

If you are like me, you don’t want abstract concepts but want to see concrete examples.  Review Examples 1 and 2 below to see the P+P Principle in action.  (They are taken in part from Professor Mary Beth Beazley’s book).  The parentheticals in Example 1 include only the relevant facts of the cases because the preceding text provides the outcome and reasoning of the cases.  But the parenthetical in Example 2 contains not only the relevant facts but also the outcome and reasoning of the case because the preceding text lacks those details.

Good Example 1: The Supreme Court has stricken several gender-based classifications when those classifications were based on “overbroad generalizations about the different capabilities of men and women.”  See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) (single-sex military schools); J.E.B. v. T.B., 511 U.S. 127, 138–40 (1994) (gender-based peremptory challenges in jury selection).

Good Example 2: The state may not discriminate based on gender stereotypes.  See J.E.B. v. T.B., 511 U.S. 127, 138–40 (1994) (striking down sex-based peremptory challenges in jury selection and “categorically” rejecting broad assumptions about capabilities of men and women).

To further illustrate, if the preceding text states that a court has concluded or determined something, the parenthetical may specify the outcome and procedural posture of the cited case (Example 3 below).  If, however, the preceding text provides those details, the parenthetical should contain different information, such as the reasoning of the case (Example 4 below).

Good Example 3: This Court has concluded that common law tort claims based on the misappropriation of trade secrets are preempted by the trade secrets act.  See United Magazine Co. v. Murdoch Magazines Distribution, Inc., 146 F. Supp. 2d 385, 409–10, 416 (S.D.N.Y. 2001) (granting motion to dismiss claim for unfair competition).

Good Example 4: This Court has dismissed a claim for unfair competition under Rule 12(b)(6) because it was preempted by the trade secrets act.  See United Magazine Co. v. Murdoch Magazines Distribution, Inc., 146 F. Supp. 2d 385, 409–10 (S.D.N.Y. 2001) (reasoning that the allegations underlying the unfair competition claim were “substantially the same” as those underlying the claim under the trade secrets statute).

Ignoring the P+P Principle

When you forget to apply the P+P Principle and do not consider the preceding text, the likely result is a parenthetical that confuses your judge.

Weak Example: This Court should dismiss the claim for negligent infliction of emotional distress.  Schrage v. Hatzlacha Cab Corp., 788 N.Y.S.2d 4, 5 (App. Div. 2004) (negligent destruction of dog); Fowler v. Ticonderoga, 516 N.Y.S.2d 368, 369–70 (App. Div. 1987) (malicious killing of dog).

The clauses in the parentheticals above do not make sense because the preceding text provides no context.  But those clauses would have been sufficient had the preceding text provided the necessary context.

Good Example: Damages for emotional distress are not recoverable for the negligent or even intentional killing of a pet.  Schrage v. Hatzlacha Cab Corp., 788 N.Y.S.2d 4, 5 (App. Div. 2004) (negligent destruction of dog); Fowler v. Ticonderoga, 516 N.Y.S.2d 368, 369–70 (App. Div. 1987) (malicious killing of dog).

Next Steps

By now, you should have a good grasp of the strong correlation between the preceding text and the content of a parenthetical.  But there is a second “P” in the P+P Principle that I have barely addressed.  The second “P” refers to the purpose for including a parenthetical with a citation.  Come back next week to learn how the purpose for a parenthetical is relevant to what information it should contain.


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