By: Professor Adam Eckart
Legal Writing Matters Blog

 

When you think of persuasive writing, what type of legal document comes to mind? For many students (and lawyers), litigation-specific documents such as briefs and motions come to mind. While these documents are persuasive, many other legal documents can be persuasive as well. In fact, transactional legal documents—such as contracts, wills, prenuptial agreements, residential real estate leases, merger agreements, and other negotiated documents—can be persuasive too. As our Legal Practice Skills course begins the spring semester studying persuasive writing, students (and professors alike) should consider how transactional documents fit into the genre of persuasive writing and how persuasive drafting skills learned when writing litigation-specific documents can translate to transactional documents.

Legal practitioners and legal scholars, including most recently Professors Lori Johnson (UNLV Law School), Karen Sneddon (Mercer Law School) and Sue Chesler (Sandra Day O’Connor College of Law), among others, have noted the importance of using persuasion in the drafting of transactional documents. Writing transactional documents (or portions thereof) in a persuasive manner can deliver several significant benefits to the parties, including but not limited to 1) facilitating performance by the transacting parties, and 2) encouraging third-party decision makers to interpret the agreement as intended.

• First, transactional drafters may utilize persuasive writing techniques to facilitate performance between the transacting parties. Transactional drafters may employ persuasive techniques in operative sections of the agreement to convince the counterparty to perform according to the agreement (e.g., persuasively stating the harm that a company would suffer if an employee violated a non-compete agreement). Additionally, transactional drafters can employ narrative techniques throughout the document to increase rapport between the parties and gain buy-in from the parties necessary to facilitate signing of the deal (e.g., pointing out important contributions of the selling party, identifying important and key personnel from the selling party critical to the company’s ongoing success, or describing key elements of the selling party or their business as “critical” or “essential” to the resulting enterprise).
• Second, transactional drafters may utilize persuasive writing techniques to encourage third-party decision makers, such as an arbitrator, to interpret the agreement as intended. Transactional drafters may utilize narrative or storytelling in the recitals or agreement introduction to gain sympathy, appreciation, or respect from the third-party decision maker (e.g., describing the companies not as “Company A” and “Company B” but akin to “David versus Goliath” or as a “fourth generation company”). Additionally, transactional drafters can employ narrative techniques in the agreement’s background information to describe the intent of the parties and ensure that a third-party decision maker adheres to the original intent of the agreement by the parties (e.g., explaining that a will is not a document used to divide specific property but instead a recognition of the testator’s wishes for fairness and equity among family members, guiding an executor beyond the specific provisions in a will).

By considering the use of persuasive drafting techniques in both litigation and transactional contexts, practitioners and students can gain a more robust sense of persuasive writing and—once in practice—can ensure that they provide the best service to their clients.

Adam Eckart is an Assistant Professor of Legal Writing at Suffolk University Law School. Before joining Suffolk, Professor Eckart practiced at Ropes & Gray LLP as an associate in the antitrust mergers and acquisitions practice and taught in the Lawyering Program at Boston University Law School.