Embrace Parentheticals

Concise arguments may be made using the (oft-ignored) parenthetical.

William Domnarski

William Domnarski is a Southland mediator and practitioner. His latest book is "Richard Posner," published by Oxford University Press in 2016.

Pity the parenthetical phrase. Lawyers have all but ignored it, and commentary on its use in legal writing is limited to its role in case citations. Most commenters focus on whether you're quoting from the cited case or summarizing its holding. The most ambitious posit that arguments sometimes may be made most concisely and effectively in parentheticals.

We don't hold competitions for the best use of a parenthetical, though if we did Vladimir Nabokov would win for this line from Lolita: "My very photogenic mother died in a freak accident (picnic, lightning) when I was three ..."

In legal writing, it is the off-label use of parentheticals that may be most productive. Many judges employ them as writers of nonlegal expository prose would - to set off amplifying or explanatory elements, as the Chicago Manual of Style recommends. Some judges, such as Richard Posner in the Seventh Circuit, even use them for what we might call "metacommentary" on a case, and even on law itself. For example, he describes simplicity as a value in law and adds "(perhaps a lost cause in the United States)." (See Wolin v. Smith Barney Inc., 83 F.3d 847, 853 (7th Cir. 1996).) We get to smile when we learn that a list of videos in a copyright-infringement case included one called "Why You Should Spiral-Cut Your Wiener," with the follow-up "(and yes, that really is about hot dogs)." (See Flava Works, Inc. v. Gunter, 689 F.3d 754, 759 (7th Cir. 2012).) In another approach, Posner uses a parenthetical to bring home a point: that deliberately withholding nutritious food from inmates and possibly causing a prisoner's "anal fissure (which is no fun at all ...)" would violate the Eighth Amendment; the aside concludes with the Web address for Wikipedia's entry on the condition. (See Prude v. Clarke, 675 F.3d 732, 734 (7th Cir. 2012).)

All this raises two questions for lawyers: how to use parentheticals, and in what kinds of instances. As for how, parentheticals are not bounded only by parentheses; commas or dashes can set off a parenthetical within a sentence. The choice of commas, dashes, or parentheses turns on how the parenthetical information relates to the rest of the sentence. Commas signal the tightest relationship, while dashes and then parentheses signal more and more significant deviations (or digressions). Parentheses have the advantage of being the most visually striking, while dashes and commas have the disadvantage of being less obvious, especially when a parenthetical phrase goes on for a bit. This makes it harder for the reader to know when the main sentence is back on track.

As for when to use parenthetical phrases, their great advantage is that they can be quite disconnected from the rest of a sentence. The sentence just needs to make sense without it. Parentheticals closely linked to the sentence at hand and set off by commas needn't trouble us. For those set off by dashes or parentheses, it may make the most sense to consider what we can't do with them: They cannot be used to set up wisecracking metacommentary on a case or on opposing counsel; most attorneys do not have the freedom to do with parentheticals what U.S. Supreme Court Justice Antonin Scalia does with his. And they shouldn't be used to show any strong emotion. Instead, they should qualify as tasteful asides or as commentary on what your opponent has produced, enhancing your reputation for candor, graciousness, or professionalism. They can acknowledge that the issues are difficult, or even that the case at hand is close.

Parentheticals can even provide something of a respite from the otherwise often relentless tone of advocacy. The credibility of a brief or other piece of legal writing is a function in part of the identity of the lawyer behind it. Because the legal profession is distinguished by tribalization and one-note advocacy, good legal writing reveals its creator as more than the argument being made.

Try using parentheticals in a letter to opposing counsel as a way of demonstrating your skill as a writer and your sense of self. Show that there is depth to you (and your ideas). Most important of all, show that yours is not just a voice for hire.

William Domnarski, author of the short-essay collection Swimming in Deep Water, practices civil and criminal law in Southern California.

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Kari Santos

Daily Journal Staff Writer

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