Today, I discuss the second “P” in the P+P Principle. If you are wondering what the heck is that Principle, then read my prior posting. I explained all the juicy details in that posting, including why the text preceding a parenthetical determines the parenthetical’s content.
The second “P” refers to the purpose for including a parenthetical with a citation. Like the preceding text, the purpose for using a parenthetical in legal writing also determines what information belongs in the parenthetical. You may use parentheticals for various purposes:
- Proving a rule from a single authority;
- Illustrating a rule from a single authority;
- Proving a rule that was synthesized from multiple authorities;
- Proving or illustrating a significant rule or argument with more than one authority;
- Showing the outcome and procedural posture of cases (e.g., reversing summary judgment for the defendant);
- Distinguishing adverse authorities; and
- Applying rules to your facts.
Before you include a parenthetical, ask yourself, “Self, what is my purpose for using a parenthetical?” If you have no purpose other than to show your judge that you have read many cases, then don’t include a parenthetical. But if you have one of the purposes listed above, then a parenthetical is likely appropriate. And once you know your specific purpose, you are ready to draft the substance of the parenthetical.
While I don’t have time to provide examples for each purpose, I will discuss a few examples. First, a parenthetical explanation is often necessary to prove a rule that was paraphrased from a single authority. When including a parenthetical for this purpose, the parenthetical should contain a quotation of the rule. For instance, if you paraphrase a rule and do not quote any part of the rule in the preceding text or quote only a few terms, then a parenthetical may contain a full quotation of the rule (Examples 1 and 2 below).
Good Example 1: To avoid dismissal, facts must be actually pled. Bishop v. Lucent Techs., Inc., 520 F.3d 516, 522 (6th Cir. 2008) (“The court should not assume facts that could and should have been pled, but were not.”).
Good Example 2: Under an express warranty, a seller may limit a purchaser’s remedy to the “repair and replacement” of a defective part. Ohio Rev. Code Ann. § 1302.93(A)(1) (authorizing a seller to “limit or alter the measure of damages recoverable . . . by limiting the buyer’s remedies . . . to repair and replacement of nonconforming goods or parts”).
Second, a parenthetical is an effective tool to illustrate how a court has applied a rule—particularly an abstract rule—to a set of facts. In the next example, because the purpose of the parenthetical is to illustrate the rule on “harborer,” its content focuses on how the court applied the rule to the facts before the court. Unlike Examples 1 and 2 above, the parenthetical below does not just quote the rule.
Good Example 3: To be a “harborer” of a dog, a landlord must have “possession and control” of the area where the dog lives. Jones v. Goodwin, No. C-050468, 2006 Ohio App. LEXIS 1246, at *5–6 (Ohio Ct. App. Mar. 24, 2006) (holding that landlords did not have possession and control over their tenant’s backyard where the dog was kept because the landlords did not access or use that area).
Third, a parenthetical explanation is useful in legal writing to prove a rule that is synthesized from several authorities. To the chagrin of many lawyers, courts often fail to state the specific rule that they are applying to their facts in reaching their holdings. An advocate must analyze several cases on an issue and determine what theme or principle emanates from the cases. The result is a synthesized rule that is based not on what the courts said but what they did. Thus, to prove the synthesized rule, each parenthetical should state what each court did.
Good Example 4: For a tortious interference claim, improper conduct includes disclosing trade secrets or asserting false statements of fact. 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”); Days Inn Worldwide, Inc. v. Sai Baba, Inc., 300 F. Supp. 2d 583, 594–95 (N.D. Ohio 2004) (denying motion to dismiss a tortious interference claim because plaintiff alleged that defendant misrepresented material facts).
A fourth purpose for including a parenthetical is to distinguish adverse authority. In the example below, the writer (defendant’s attorney) identifies a common theme in the adverse cases and proves that theme with parentheticals that identify specific reasons why the adverse cases do not support the government’s position.
Good Example 5: The two cases relied on by the government are factually distinguishable because each case involved a second search based on a lawful warrant; the second search was independent of the initial illegal search. See Segura v. United States, 468 U.S. 796, 800-01 (1984) (explaining that the factual basis for the warrant for the second search was independent of the initial illegal entry); United States v. Moreno, 758 F.2d 425, 427 (9th Cir. 1985) (“The information from which the warrant was procured was completely distinct from the [initial] illegal entry.”).
Armed with the P+P Principle, you are ready to start writing parentheticals. As you draft rules and parentheticals, remember that judges want motions and briefs to be self-contained. If a judge must read the cited authority to understand your argument, the writing is unclear. And if a judge must read the cited authority to determine whether it stands for the stated proposition, you have failed as a legal writer.