Lori Johnson, ‘Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices’

Abstract:
Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters who choose to retain traditional terms, and illustrates the potential benefits of doing so. Exploration of the development of drafting scholarship, along with empirical studies and literary theory, support the retention of certain “magic words” in complex contracts between sophisticated parties, particularly where beneficial to client advocacy.

Johnson, Lori D, Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices (2014). Syracuse Law Review, Vol 65, 2014, forthcoming; UNLV William S Boyd School of Law Legal Studies Research Paper Series.

First posted 2014-09-12 05:23:16

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