Bench & Bar

JAN 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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| JANUARY/FEBRUARY 2018 28 T he parenthetical is an effective but often underused legal writing tool that can help persuade without taking up too much space. Judges and top litigators have repeatedly extolled the virtues of a well-written parenthetical. For example, Justice Ginsberg has stated that parenthetical explanations are useful for "offering the reader a clue" as to why a case citation has been provided. Instead of discussing every relevant case in depth, parentheticals offer an alternative way to highlight the importance of authority without falling into the trap of simply listing cases and their hold- ings, which can become tedious. For example, the following summary of a case: In Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 119-20 (S.D.N.Y. 1999), aff 'd 210 F.3d 88 (2d Cir. 2000), the plaintiff sued PepsiCo, Inc., arguing that its television advertisement where it stated that a jump jet (valued at $33.8 million) could be exchanged for 7,000,000 "Pepsi Points," was an offer to enter into a contract. e plaintiff purchased the Pepsi Points for $700,008.50, which was allowed under the contest rules, and sued when Pepsico, Inc. refused to exchange the points for the advertised jet. Id. e District Court granted summary judgment in favor of the defendant and ruled in part that, even if the adver- tisement could be seen as an offer to enter into a contract, no reasonable person could have believed that the offer was serious. Id. at 131. Instead, the advertisement was clearly a humorous exaggeration. Id. can be summarized for the relevant point of law using a parenthetical: Courts will not find that a party has made an offer if a rea- sonable person would not have believed that the offer was serious. Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 119- 20, 131 (S.D.N.Y. 1999), aff 'd 210 F.3d 88 (2d Cir. 2000) (holding that a television advertisement that stated that $700,008.50 of "Pepsi Points" could be exchanged for a $33.8 million jump jet was not a serious offer). Not only does the parenthetical save space, but it allows the argu- ment to be highlighted, while the underlying facts of the case (humorous though they are) are placed in the background, where they belong. In other words, instead of summarizing a case, expect- ing the reader to glean the important parts themselves, it places them front and center, where they can be most persuasive. Parentheticals are also very useful when string citing cases; they provide a brief explanation of how each cited case support the rule provided. Here is an example: To be reasonable, a non-competition clause must be lim- ited in duration and geographic scope. Hawkins Chem., Inc. v. McNea, 321 N.W.2d 918, 920 (N.D. 1982) (limit- ing the enforcement of a non-competition clause to one county); Igoe, 134 N.W.2d at 513 (finding a non-com- petition clause enforceable for the duration of ten years). In the above paragraph, the two cases each provide a concrete example of the two parts of the rule stated and they do so quickly and efficiently. As these examples show, parentheticals can be a nonintrusive tool that persuades the reader. However, writing a good parenthetical takes some skill. To be effective, they must be concise and focused on the essential parts of the cited cases. effective legal writing (USING PARENTHETICALS) BY: DR. JOANNE SWEENY EFFECTIVE LEGAL WRITING

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