In January, Oxford will publish my Point Made: How to Write Like the Nation’s Top Advocates, featuring hundreds of examples of stellar writing from 50 influential lawyers, from David Boies to Elena Kagan.
But even the best attorneys make mistakes. Ready to match wits with some of these superstars?
Let’s find and fix some classic examples of faulty parallel structure.
Either . . . or
Take this example from a voting-rights cert petition signed by none other than Barack Obama:
[T]he circuit courts have uniformly recognized that plaintiffs can challenge a redistricting plan under §2 either on the ground that the plan is intended to deny a minority group equal opportunity or that it has that result.
Either comes before “on the ground that,” but or comes before just “that.” A classic parallelism problem.
To avoid that problem, Obama might have repeated “on the ground” before the second “that.” But here’s a more concise solution that puts because after both either and or:
[T]he circuit courts have uniformly recognized that plaintiffs can challenge a redistricting plan under §2 either because the plan is intended to deny a minority group equal opportunity or because it has that result.
See if you can spot similar errors in the sentences below.
Both . . . and
Do you see why both is in the wrong place in this trial brief from a sexual-harassment suit against Isiah Thomas and Madison Square Garden?
This punitive damages award is excessive, both under New York law and the United States Constitution, and it should be reduced below the Title VII cap of $300,000.
Both is a common parallelism minefield. When you write both X and Y, make sure that X and Y match up.
In the sentence above, X is “under New York law” but Y is just “the United States Constitution.” To create a parallel construction, slide under before both:
This punitive damages award is excessive, under both New York law and the United States Constitution, and it should be reduced below the Title VII cap of $300,000.
Not only . . . but
A third source of faulty parallels is not only-but. Do you see what’s wrong with this sentence from a brief in a securities case?
[A] corrective disclosure must not only notify the market that the statement turned out to have been wrong, but that it was actually wrong when made.
Not only precedes “notify the market,” while but precedes “that.” We’re teetering on the balance. Here’s what the lawyer could have written instead:
[A] corrective disclosure must notify the market not only that the statement turned out to have been wrong, but also that it was actually wrong when made.
As these not only-but sentences get more complex, keeping the clauses parallel becomes more difficult, as you’ll see in this sentence from eBay v. MercExchange:
eBay was not only well aware of MercExchange’s patent, but eBay tried to purchase that patent before it started infringing.
In the original, not only is before “well aware,” a modifying phrase, while but is before “eBay tried,” a noun-verb combination. Feeling shaky?
Both not only and but should precede a noun-verb combination here:
Not only was eBay well aware of MercExchange’s patent, but eBay tried to purchase that patent before it started infringing.
Lists
Let’s end with a fourth and final source of parallelism problems: lists.
Do you see what’s wrong with this sentence plucked from a fight over Calvin Klein jeans?
Both these purported counts depend on the same law, same facts, and have the same defects.
To create a parallel list, make sure that all items on your list are the same part of speech. In this list, the first and third items are verbs (depend, have), but that the second is a noun (facts).
Consider either of these revisions:
Both these purported counts share the same law, same facts, and same defects.
Both these purported counts depend on the same law, share the same facts, and suffer from the same defects.
Bottom line: You can find trouble in paradise in even the greatest legal writers’ prose. Remember these four key parallelism traps—either-or, both, not only-but, and lists—and your own sentences will regain the balance and tranquility that help put readers at ease.
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