Thursday Thinkpiece: Fostering the Role of the Transactional Lawyer as Storyteller

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Happily Ever After: Fostering the Role of the Transactional Lawyer as Storyteller
20 Tenn. J. Bus. L. 491 (2019)

Karen J. Sneddon, Professor of Law, Mercer University School of Law and Susan M. Chesler, Clinical Professor of Law, Sandra Day O’Connor College of Law

Excerpt: Parts I through Part V, up to the end of Strategy B

I. INTRODUCTION

Transactional documents do more than allocate the risk of loss or select the governing law. Transactional documents, whether employment contracts or lease agreements, encapsulate the wishes, hopes, and fears of the transacting parties. The documents share a series of events, identify the key actors in those events, and anticipate particular outcomes or future events. In other words, the transactional documents are narratives. The transactional lawyer is thus more than a transactional intermediary. The transactional lawyer is the narrative agent or storyteller.

The “narrative” is often associated with the following words: story, tale, fiction, and entertainment. These associations may appear to have little in common with transactional documents. Yet, these associations do not reflect a full understanding of narrative. Dismissing the applicability of narrative to transactional documents also does not reflect a full understanding of the purpose of transactional documents and the role of the transactional lawyer.

To begin, this essay will define narrative and explain why transactional documents should be considered to be narratives. This essay will then explore the role of the transactional lawyer as a narrative agent and share five practical strategies to foster the role of the transactional lawyer as storyteller.

II. NARRATIVE DEFINED

A typical definition of “narrative” is a story that involves characters undertaking actions that cause a series of events. But the term narrative is broader than an entertaining, fictional tale. The term references a variety of texts—both literary and nonliterary. Some posit that the human brain automatically processes events as narratives. Life is both then lived and remembered in a series of constructed narratives. Whether narrative is in fact an innate process of the brain, narrative is certainly a predominant method employed to disseminate information. Narrative, for instance, is used in commercial and Instagram stories to share information. As explored in the disciplines of literature, composition, rhetoric, cognitive psychology, neuroscience, and the law, narrative refers to a series of techniques. These techniques are used to convey text, whether oral or written, in an accessible and meaningful manner. Narrative can thus be used to facilitate the composition of various texts. For those reasons, narrative has been of interest to disciplines beyond literary studies.

III. NARRATIVE AND TRANSACTIONAL DOCUMENTS

Lawyers seek to create accessible, meaningful texts. The use of narrative techniques has been widely explored in the creation of legal texts. Much of that exploration has been limited to the creation of litigation-based documents. Scholars, commentators, and practitioners have noted the already extensive use of narrative in such documents. Suggestions on expanding the use of narrative techniques in such documents have also been explored. In this context, the litigator is the storyteller. The trial lawyer constructs an affidavit in support of a petition and spins a tale in front of a jury in a closing argument. The appellate lawyer crafts a theory of the case in the statement of facts that then shapes the arguments that become key points in oral argument. These narratives focus on persuading the decision maker. These are not the only opportunities narrative provides to lawyers.

Initial reluctance to equating narrative to transactional documents may be because the purpose and audience of transactional documents are different from that of litigation-based documents. As noted above, narrative focuses on characters, actions, and events. Although not so limited, narrative often engages the audience with hooks and images. Litigation-based documents may seem to be reflective of this understanding of narrative. Transactional documents may be more readily considered as examples of expositive text.

Expositive text focuses on educating the reader and delivering information in a concise, highly structured manner. That structure includes the use of a table of contents, headings, bolded phrases, and diagrams. Examples of expositive text include encyclopedias, instruction manuals, recipes, and driving directions. A rigid distinction between narrative text and expositive text is not appropriate—text often contains characteristics of both narrative and expositive texts. Indeed, transactional documents have characteristics of both types of texts.

Transactional documents seek to inform, educate, and guide the transacting parties. Transactional documents inform the transacting parties about their rights and obligations. The documents educate the primary and secondary audiences about the goals of the parties. The documents aim to guide the future actions of the parties. Transactional documents are highly structured into sections with cross-references abounding. Nonetheless, this information is conveyed through a series of events by clauses and provisions. The transacting parties become characters in those events pursuing or refraining from particular actions related to those events. These events are relayed by a narrative agent—the transactional lawyer. The narrative agent should relay that information in an accessible and meaningful manner. That’s narrative.

IV. TRANSACTIONAL LAWYER AS STORYTELLER

If transactional documents are narratives, that means a narrative agent must be identified. The narrative agent is the transactional lawyer. The narrative agent, or storyteller, brings to mind the image of a person telling tales around a campfire. Famous storytellers include Aesop, the Brothers Grimm, and Scheherazade. Equating a transactional lawyer to Aesop, the Brothers Grimm, and Scheherazade may appear to be ill-fitting comparisons. Transactional lawyers do not create fables or fairy tales. Transactional lawyers do not have the freedom to create facts or disregard material facts that are inconvenient for a conceived narrative. Yet, the comparison is surprisingly apt.

All narrative agents must work within constraints. Those constraints include genre constraints. Audience expectations and needs shape the nature of the narrative to be told. A poet, for example, selects the particular form and decides which conventions to incorporate into the poem. Likewise, the transactional lawyer selects the appropriate form to present the narrative. Appropriate form selection is an important transactional skill that requires the drafter to sift through form books and form files. Transactional lawyers do more than identify one form. Indeed, transactional lawyers do not mechanically assemble any document from solely existing provisions. Transactional lawyers create appropriate text through innovation, just as all storytellers innovate. Storytelling involves recognizing standard conventions and pushing the boundaries, where appropriate.

Narrative agents undertake an active role in shaping the narrative. Transactional lawyers take an active role, not only creating the documents, but shaping the entire transaction. While the transacting parties may have a particular transaction in mind, the transactional lawyer does not merely take dictation. The role of the transactional lawyer is to proactively construct the transactional documents to fit the particular transaction. The transactional lawyer also anticipates issues that have yet to be identified, recognized, or acknowledged by the transacting parties. The transactional lawyer works to understand the history of the parties and the nature of the transaction.

Narrative agents create cohesive narratives. The transactional documents produced must be consistent and cohesive. Creating a cohesive narrative requires more than consistent use of terms of art. The transactional lawyer weaves together strands of phrasing, clauses, headings, and provisions to produce a coherent text. That text is built around the elements of narrative—characters, actions, and events. The created documents will promote, guide, and control the relationship of the transacting parties. The transaction, and the related transactional documents, begins with “once upon a time” and aims to end at “happily ever after.” Equating a transactional lawyer to a storyteller reflects the responsibility the drafting lawyer assumes to tell the tale of the transaction.

V. FIVE PRACTICAL STRATEGIES

This essay shares five practical strategies that transactional lawyers can use to present transactional documents as narrative. The strategies will be of interest to professors who could incorporate these strategies into classroom exercises. The strategies will also be of interest to practitioners who can use these strategies when drafting a variety of transactional documents.

A. Use Actual Names in the Documents

“What’s in a name? That which we call a rose
By any other word would smell as sweet”

– William Shakespeare [1]

The first strategy is to use the actual names of the transacting parties in the documents. In transactional documents, the parties are often Assignor and Assignee; Buyer and Seller; Employer and Employee; Leasor and Leasee; Trustee and Beneficiary; Donor and Donee; Wife and Husband. The transacting parties are often presented in documents with reference to their roles as transacting parties. These terms accurately describe the role that the particular party will play in the transaction, but these terms do not necessarily make a meaningful connection to the transacting parties. Despite the accuracy of these terms, the use of terms can alienate the parties from their own transaction because the individuality of names is replaced with a legal term of art.

Legal terms used in most form documents, such as Assignor and Assignee, represent more than convention and convenience—the legal terms reflect substantive meanings that embody certain rights and obligations. Using such legal terms can also minimize the need for the drafter to edit certain portions of the documents. But the terms can also act as barriers for identification by the transacting parties themselves. For instance, the actual parties do not see themselves as the one-dimensional terms of Assignor or Assignee. Individuals are multi-faceted, and they identify with their names, the names of their employer, and the names of their family members. Using the names of the parties thus allows for the parties to identify with the rights and obligations, not of a generic Assignor and Assignee, but an individual party.

By approaching the transactional document as embodying a narrative, using the actual names of the parties allows those parties to become the characters in the story of their own transaction. This also instills ownership in the parties of their rights and obligations. The document becomes more than a mere generic form; it becomes personal to the transacting parties.

Consider the following language from a form document:

Assignor assigns to Assignee all of Assignor’s right, title, and interest under the Purchase Agreement, including without limitation, all right, title, and interest in any down payment or earnest money.

As written, the provision accurately reflects the roles of the parties. Nevertheless, the use of the legal terms does not encourage the transacting parties to take ownership of their roles. The parties should feel a connection to the documents that embody their current obligations and future responsibilities. But the parties may not identify themselves by these accurate, yet faceless, legal terms.

The form provision may be revised as follows:

Gavin Revel assigns to Bridget Simms all of Gavin Revel’s right, title, and interest under the Purchase Agreement, including without limitation, all right, title, and interest in any down payment or earnest money.

Simply replacing “Assignor” with Gavin Revel and “Assignee” with Bridget Simms allows the transacting parties to see themselves in the document and in their specific transaction. There is power in the personal rather than the generic. It facilitates not only the parties’ understanding of their rights and obligations, but may encourage performance under the agreement. This straightforward substitution can easily be completed with the aid of a word processing program and careful proofreading. But this discrete change may have a big impact on the ability of the transacting parties to identify with the personal story of their transaction, and consequently with the documents themselves.

B. Customize the Order of Provisions

“A story has no beginning or end:
arbitrarily one chooses that moment of experience
from which to look back or from which to look ahead.”

– Graham Greene [2]

The next strategy a drafter can use to tailor the form document to the parties’ particular transaction is to customize the order of provisions. While every story has a beginning, a middle, and an end, the events that are chosen for each part are often selected by the storyteller. Narratives are constructed, at least in part, in the order of events relayed. Consider the power of a compelling hook and the thrill of a cliffhanger. When a story is told out of chronological order, it alters the way in which the viewer understands the story; certain aspects of the overall story are either highlighted or downplayed based on where in the story they appear.

The nature of the events and the order in which those events are described reflect the goals of the storyteller. In other words, the storyteller’s selection of events and characterization of those events as the beginning, the middle, or the end, shapes the narrative. Transactional lawyers should therefore consider the order of provisions in their transactional documents. Altering the order of provisions from the order of provisions in a form document may promote the creation of a narrative that better reflects the understanding and intent of the transacting parties.

Sometimes, conventions inform the sequence and order of clauses in form transactional documents. These conventions may have substantive consequences, such as placing pre-residuary gifts before a residuary gift in a Last Will and Testament. Other conventions, such as leading with the identification of the Testator’s family, reflect common usage. The overall organizational structure of contracts also reflects common usage and has substantive consequences. For example, placing the recitals or background section in the beginning of the contract ensures that the reader is familiar with the understanding and intent of the parties to the transaction. This knowledge, especially when the reader is a court, may have a significant impact on how the document’s terms are interpreted. Similarly, placement of the definitions up-front also is based on convention but has a substantive impact on the reader’s understanding of the subsequent terms.

In the case of the transactional document, the organizational approach also projects the narrative. The beginning of the narrative establishes a base or starting point. The purpose or goal of the narrative is either explicitly stated or is subtly foreshadowed. The middle presents a conflict and describes tension. The end presents resolutions and shares takeaways. The manner in which those events are ordered will alter the narrative.

Consider how altering the structure of a Will may convey the individual’s story. For a Testator with young children, the narrative is not necessarily a celebration of the wealth accumulations of a lifetime but a narrative emphasizing the importance of caregiving. The Will’s introduction can thus be followed by the nomination provisions for the minor children’s guardians. The provision can be followed by the property management device for the children, such as the creation of custodianship accounts or testamentary trusts. The substantive integrity of the Will is preserved by the inclusion of all of the provisions necessary for the transmission of wealth. But by front-loading the Will with provisions relating to the minor children, the narrative emphasizes the caregiving as its central theme.

In contrast, a Will that begins with a series of specific gifts to various charitable organizations conveys a different narrative. The narrative centers instead on benevolence. This attention to the ordering of provisions facilitates the initial creation of the document and the ultimate implementation of the document. In the case of a Will, the document may be created fifty years—or more—before implementation. By aligning the order of the provisions with the narrative of the individual making the Will, the interpretation and implementation are better guided by the Testator’s intent.

The same is true for the ordering of obligations in a contract. The transactional drafter must make conscious choices about how to organize the clauses and provisions. One obvious choice is to arrange the terms in chronological order, in terms of how the life of the transaction will proceed. Another option is to organize the terms by their relative importance to the transaction, placing the terms that the parties view as most significant in the beginning of the document. Finally, the drafter may opt to keep the terms in their “traditional” sequence, meaning the way in which they are most commonly ordered in form documents. The principal advantage of the traditional sequence is familiarity, yet the rearranging of the document may yield a different understanding of the transaction.

For example, if the Employer’s attorney is drafting an employment agreement, she may choose to place a non-compete restrictive covenant near the beginning of the operative terms because that particular term is of utmost importance to her client. The terms could thus be ordered as follows:

1. Employment term
2. Methods of termination by parties
3. Employee’s duties upon termination:

1. Non-competition clause
2. Non-solicitation clause
3. Confidentiality clause

4. Employer’s duties upon termination
5. Employee’s job duties during employment term
6. Employer’s duties during employment term

1. Salary
2. Benefits

Yet, if the terms were organized in a chronological order, that term, which only comes into effect upon termination of the employment relationship between the parties, will likely be placed toward the end of the operative term section. It will be preceded by the terms outlining the parties’ performance during the employment relationship, such as job duties, salary, and benefits. The arrangement of the terms thus impacts the “story” told in the employment contract. The order of the provisions reflects the hierarchy of importance of the terms to the client.

The order of provisions in form transactional documents may have started somewhat arbitrarily. And the repeating of particular sequences in form documents over time may have solidified some of those orders. This repetition can be comforting to individual drafters and arguably promote efficiency. Yet, barring substantive restrictions, comfort and efficiency should not be used to override the individual concerns of the transacting parties. The order of provisions should reflect deliberate choices by the drafter to convey the narrative as appropriate to the transacting parties.
…

[1] WILLIAM SHAKESPEARE, ROMEO AND JULIET act. 2, sc. 1, ll. 85–86.
[2] GRAHAM GREENE, THE END OF THE AFFAIR 7 (1962).