Wednesday, September 27, 2017
Susan Chesler & Karen J. Sneddon recently posted an Article entitled, Tales from a Form Book: Stock Stories and Transactional Documents, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Legal transactions are stories. They are the stories of marriages, business partnerships, acquisitions, births, and deaths. These stories are built around the hopes, fears, wishes, and concerns of the particular parties to the transaction. But at their core, these stories are not just about the individual circumstances of those parties. At the core of each of these individual stories is a stock story. Virtually every transactional document starts with a form. And stock stories are embedded within each form document. The forms feature ingénues, tricksters, misers, and sages who undertake journeys, confront mutinies, and at times achieve glory.
This article examines the tales of transactions by examining the stock stories within transactional document forms. This article will first define the term “stock story,” highlighting the applicability of the term “stock story” to the law and its primary focus to date on litigation-based legal documents. This article will then identify and analyze the stock stories embedded within a variety of transactional form documents, such as wills, trust agreements, employment contracts, premarital agreements, and advance directives. Specifically, the article will analyze the (a) stock characters, (b) stock plots, (c) stock situations, and (d) stock inevitable outcomes of transactional form agreements. This article will then address the possibilities and pitfalls related to recognition of the stock stories embedded within these transactional forms.
As with the use of stock stories by lawyers in any situation, there is a concern about misrepresenting the unique nature of the individual transaction, as well as the potential for overreliance on the stock story, which may ultimately lead to hindering drafting innovation. Yet to the contrary, the recognition of stock stories in transactional form documents may also allow for effective narrative shortcuts, providing valuable guidance to the formation of the transaction as well as enabling a better understanding of the transaction by the parties, drafters, and courts. Rather than undercut or negate the value of utilizing transactional form documents and transactional form books, this article seeks to use the understanding of transactional form documents as stock stories to better appreciate how to most effectively use such forms in practice.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.