Can storytelling have anything useful to inform contract drafting? Perhaps surprisingly, according to Susan Chesler (Arizona State) and Karen Sneddon (Mercer), the answer is yes. As is befitting scholars of narrative, the authors make a persuasive case. In Once Upon a Transaction: Narrative Techniques and Drafting, Chesler and Sneddon argue that techniques usually associated with legal analysis and persuasion have a place in facilitating more effective transactional drafting. Here is their abstract:
A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story. These stories, made with provisions and clauses, result in the formation of contracts, agreements, and wills. Conceptualizing transactions as narratives benefits the negotiation, drafting, implementation, interpretation, and, ultimately, enforceability of the transactional document.
This article showcases the use of narrative techniques applicable to the drafting of transactional documents. Tethered to the fundamental principles of good drafting, the article will highlight the use of stock stories, plot and narrative movement, character, point of view, narrative setting, themes, and motifs across a spectrum of transactional documents.
After working through drafting examples utilizing narrative methods such as stock stories, point of view, and setting, the authors ultimately conclude that “[r]ather than injecting uncertainty or bloating a document with unnecessary information, narrative techniques can spur innovation while remaining grounded within the principles of good drafting,” and that effective drafting can “draw upon narrative techniques to facilitate conceptualization, construction, and ultimately implementation of the transaction.”
The potential toolkit for transactional lawyers described in Professors Chesler and Sneddon’s article provides a fascinating way to think outside the box for effective drafting. Once Upon a Transaction was recently published in the Oklahoma Law Review and is available for SSRN download here.
