Wednesday, September 21, 2011

Legal skills scholarship: "Legal forms as rhetorical transaction: competency in the context of information and efficiency"

By Professor Kirsten Davis (Stetson) and available at 79 UMKC L. Rev. 667 (2011). From the introduction:

Using legal forms, that is, using existing documents as a template for drafting, is an age-old lawyering practice. Courts sometimes require form use and publish forms, for example, in conjunctions with their local rules. Commercial publishers sell forms: originally in print, and now electronically, including not only traditional legal forms, designed to be models for drafting wills and contracts, but also briefs and motions filed in previous cases, stored in word-searchable databases and meant to be used as examples or models for drafting. Statutes prescribe form use or provide legislatively approved forms, such as in the context of advanced directives like living wills or health care powers of attorney. Moreover, improved technology has resulted in document assembly systems, computer-based products that use an underlying legal document to guide the user through an interview to produce “error-free” legal documents in a “fraction of the time” it previously took lawyers to produce those same documents.

 The prevalence of legal forms, the increasing amount of information available to legal practitioners, the need for efficiency in legal practice, and the continuing ethical requirement of competent practice demands that the issue of competent legal form use be explored. Although one approach by those teaching students about legal drafting can be to discourage form use or discuss form use with a healthy dose of finger-wagging, the idea that lawyers will ignore forms or chose not to use them is unlikely and impracticable because, as various legal publishers point out, forms can save lawyers time and money. In addition, form use, if done well and with reliable and well-composed forms, can help a lawyer practice more efficiently and provide a lawyer with useful information to assist her in competently drafting a document. Accordingly, the legal profession needs an approach to the use of forms in practice that takes into account the need for efficiency, the increased availability of information, and the professional obligation of competence.

 When a lawyer uses a form as a template or model for drafting a legal document, she is attempting to competently enter a particular legal discourse community-to communicate information in a way that is recognized by the intended audience and to effectuate a specific purpose that audience acknowledges. Rhetorical theory recognizes this as a “rhetorical situation,” a confluence of “persons, events, objects, relations, and an exigence which strongly invites utterance.” Using a form to enter a legal discourse community is a rhetorical act, an act meant to establish, maintain, and transform a particular legal community. And forms themselves are rhetorical documents-a component of a communicatively constructed transaction that includes the form itself, the form's original author, the form's current user, and a broader communicative context that includes past, present, and even future, yet-to-be-defined audiences. Once form use is recognized as rhetorical, then rhetorical theory, a theoretical perspective that seeks to explain the production and reception of texts and discourse, becomes a valuable lens through which to analyze form use and to address the problems of being efficient, managing information, and competently using forms in the legal profession.

 Accordingly, this article first describes the tensions among efficiency, information overload, and competency in form use. Then, it examines the various definitions of “form,” those emanating from the vernacular, from formbook producers, from case law, and finally, from a rhetorical perspective based upon the rhetorical theory of Kenneth Burke. It next describes a rhetorical theory of form use in the legal profession based on an extension of Kenneth Burke's theory of literary form and creates a unique “rhetorical taxonomy” of legal forms. Finally, this article offers an approach for competent legal form use in practice based upon this taxonomy.


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