Thread by @ImmersionClinic

1. This @ImmersionClinic thread on parentheticals in legal briefs is based on an essay by @brian_wolfman available in full here: papers.ssrn.com/sol3/papers.cf…). #legalwriting #appellatetwitter #LRWProf. [cont'd]

1.1. cc: @RimaSirorta @JonahPerlin @LawProfTJ @Sherrileekeene @ProfSueMcMahon @jlwherry @AWIonline @mjcedrone [cont'd]

2. Introduction
This long thread is a short essay on explanatory parentheticals in legal briefs. Yes, folks, it’s embarrassing, but you’re being offered gratuitous moralizing on parentheticals. [cont'd]

3. I’m concerned here with parentheticals that appear after a citation, as in Tortoise v. Hare, 123 F.3d 456 (5th Cir. 2018) (holding that rabbits are faster but less sophisticated than turtles ). [cont'd]

4. Why am I bothering with this essay?

Over the last decade, I’ve been writing many briefs more collaboratively than in my earlier practice—with clinic law students. As I’ve mentored student brief writers, I’ve reflected on the overuse and misuse of parentheticals. [cont'd]

5. At times, I see an almost obsessive, reflexive use of them, and, as I’ll explain, they can get in the way of persuasion. Moreover, some brief readers—including some judges—report that they do not read parentheticals or skim them quickly. [cont'd]

6. So, brief writers should be concerned about using parentheticals in the body of a brief that are intended to be understood *while the brief is being read* (as opposed to for later use in in-chambers research or opinion writing). [cont'd]

7. I’ll acknowledge, for the sake of discussion, that explanatory parentheticals can be useful. We lawyers are trained to assimilate them as we read, so they don’t get in the way or lost as much for lawyers as they do for non-lawyers. [cont'd]

8. For instance, a parenthetical can, on occasion, efficiently explain why a not-right-on-point authority is sufficiently analogous to lend support, when a longer, ordinary-prose explanation might be unnecessary or diversionary. [cont'd]

9. Even a string of citations with explanatory parentheticals may occasionally be helpful to set forth a typology or simply to identify examples of something to drive home a key point. [cont'd]

10. Similarly, a parenthetical can prove up a citation—often a quote from an authority in the parenthetical does the trick—because the bare citation, while fair and accurate, is not authoritative enough or believable enough standing alone. [cont'd]

11. My thesis, then, is not that all parentheticals are bad but that they are badly overused. Their overuse is a barrier to easy, efficient, pleasurable reading, so undermines a brief’s persuasive power.

Consider four particular concerns. [cont'd]

12. The Big Four

*First,* over and over again, I see briefs with parentheticals that repeat what the writer just said, either word-for-word or close to it, like this: [cont'd]

13. The Easter Bunny has no role in the enforcement of the Voting Rights Act. See Peter Rabbit v. Bugs Bunny, 222 F.3d 222 (8th Cir. 2011) (“the Easter Bunny plays no role in enforcing the Voting Rights Act”). [cont'd]

14. This kind of parenthetical is almost always useless; it slows down the reader, drawing her eyes inside the parenthetical and then back out for no reason. The remedy here (of course) is just to ditch the parenthetical. [cont'd]

15. If the parenthetical contains a quote you like, use it in ordinary prose, but, still, ditch the parenthetical. (For what it’s worth, I prefer the quoted *Bugs Bunny* material because it is shorn of the nominalization “enforcement.”) [cont'd]

16. Here’s an example of how you might get stuff out of the parenthetical and into the brief’s ordinary prose.

A little while back students sent me a draft Supreme Court brief that said this: [cont'd]

17. This Court has explained that in cases not involving the transfer of power from one Article III court to another, most statutory limitations periods are nonjurisdictional. [cont’d]

18. Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 20 n.9 (2017) (“In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another,” this Court has “made plain that most statutory] time bars are nonjurisdictional.”)[cont.)

19. This following version slims down the writing and better accommodates the reader:

“In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another,”[cont’d]

20. this Court has “made plain that most statutory time bars are nonjurisdictional.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 20 n.9 (2017). [cont'd]

21. Of course, if you don’t like some or all of the quoted material , don’t use it. But, in any event, don’t use a parenthetical to repeat yourself. [cont'd]

22. *Second,* and perhaps most importantly, stuff gets tossed into parentheticals that would work better—often much better—in the brief’s ordinary, non-parenthetical prose. [cont'd]

23. Sometimes the stuff in the parenthetical is just better than what appears outside of it. Other times, that good stuff is a variant, or a point of emphasis, that underscores your basic point. [cont'd]

24. Why would you bury that good stuff in a parenthetical, where it might be missed or skimmed or, at a minimum, alter the reader’s pace and the flow of your argument? Why not incorporate the good stuff into the brief’s ordinary prose? [cont'd]