Parentheticals are grossly underused. Many times, a full
case explanation isn’t necessary to make the point the lawyer needs to make,
yet lawyers often shy away from parentheticals—perhaps for fear that the judge
will think the case isn’t important if explained through a parenthetical. I
like parentheticals, use them frequently, and understand that many judges like
to see them too. Parentheticals work well when used in the following ways:
To explain a
relatively straightforward case with uncomplicated facts: Some cases don’t
need a full case explanation. The facts are straightforward, the law is
uncomplicated, and the reasoning is short. Generally, those case explanations
should be made through a parenthetical.
For example, under Georgia law, service
of process on a defendant made after the statute of limitations expires will
only relate back if the plaintiff acts with the “greatest possible diligence”
in perfecting service (i.e. the plaintiff must act quickly). Numerous Georgia
courts have considered whether certain lengths of time are sufficient to
satisfy the requirement of “greatest possible diligence” in perfecting service.
You needn’t complete a full case explanation for those cases because the facts
are all going to be similar: the plaintiff filed suit but did not perfect
service until X days after the statute of limitations expired; the law is
straightforward (the plaintiff must exercise the “greatest possible diligence)
and the reasoning is short. So parentheticals will help you explain the cases
quickly and concisely:
A plaintiff must act
with the “greatest possible diligence” in perfecting service after the statute
of limitations has expired. Wade
v. Whalen, 232 Ga. App. 765, 766, 504
S.E.2d 456, 458-59 (1998). While the Georgia courts have offered no express
rules, several courts have concluded that service must be made within a matter
of days or weeks to relate back. See
Akuoko v. Martin, 298 Ga. App. 364, 680 S.E.2d 471 (2009) (affirming
dismissal where defendant sued 19 days after statute of limitations expired); Neely v. Jones, 271 Ga. App. 487, 610
S.E.2d 133 (2005) (affirming dismissal where plaintiff waited a month after
statute of limitations expired to serve complaint); Hardy v. Lucio, 259 Ga. App. 543, 578 S.E.2d 224 (2003) (holding trial
court properly dismissed complaint where service was perfected seven weeks
after statute of limitations expired); Harris
v. Johns, 274 Ga. App. 553, 618 S.E.2d 1 (2005) (upholding trial court’s
decision to dismiss case where 51 days passed between filing and service of
suit, service was not diligent, even though plaintiff had made at least one
unsuccessful attempt at service during that period).
To show consistency
in outcome with a case previously explained through a full case explanation: Sometimes,
you’ll have multiple cases with similar facts and a similar outcome. You almost
certainly want to provide a full rule explanation for one at least one of those
cases (usually the seminal case, a case with facts most similar to yours, or a
case decided by the same court).
But you needn’t bore the judge with a full
rule explanation for all the cases, though you want to use the other cases to
ensure the judge understands that the law is settled or that multiple courts
have reached the same results under similar facts. Parentheticals work well in
these situations too. Take this example
from a Daubert motion:
In Plantation
Pipeline Co. v. Continental Casualty Co., No. 1:0-CV-2811, 2008 WL 4737163
(N.D. Ga. July 31, 2008), the parties sought to offer testimony from competing
insurance experts regarding when the insured’s duty to report a claim for a gas
pipeline leak was triggered and whether the claim was covered under the
language of the policy. The trial court
concluded that both experts' opinions were inadmissible under Rule 702 and Daubert because both opinions were
improper “expert legal opinion.” Id.
at *7. The court noted that because
construction of a contract is a question of law, “[e]xtrinsic evidence to
explain ambiguity in a contract becomes admissible only when a contract remains
ambiguous after the pertinent rules of construction have been applied.” Id.
Because the trial court had already analyzed the policy at issue and
determined it was not ambiguous, the extrinsic opinion evidence was not
admissible. Id.; see also Sheet Metal Workers, Int'l Ass'n v. Architectural Metal Works,
Inc., 259 F.3d 418, 424 n.4 (6th Cir. 2001) (noting that the opinions of
expert witnesses regarding the meaning of contract terms are irrelevant and
inadmissible); Marx, 550 F.2d at 511
(vacating jury's verdict where the trial judge allowed testimony of expert who
offered opinion on legal standards derived from contract and whether conduct of
one party met those standards); Nova Cas.
Co. v. Waserstein, No. 04-20755, 2005 WL 5955694, at *2 (S.D. Fla.
September 7, 2005) (refusing to allow expert to testify on his interpretation
of insurance policy's pollution exclusion because policy language was not
ambiguous).
Sheet Metal Workers,
Marx, and Nova all support the Plantation
Pipeline finding but don’t warrant full rule explanations themselves
because they don’t add any reasoning not already explained in Plantation Pipeline. Using
parentheticals to explain these cases unobtrusively bolsters the persuasiveness
of Plantation Pipeline (after all,
other courts follow the same rule) without beating the judge over the head with
rule explanations.
To offer an important
quote: I also like to use parentheticals for helpful, pithy quotes. The case
itself might not warrant a full case explanation (or even any explanation), but
if the opinion contains a good quote that’s helpful to my case, I’ll use a parenthetical.
This good example comes from a brief I’ve discussed before on this blog—Jeremy Simmons’s
brief in Roper v. Simmons:
Brief
for Respondent at 15, Roper v. Simmons, 543 U.S. 551 (2005) (No.
03-633), 2004 WL 1947812 (internal citations and quotes omitted).
