Redefining Roles and Duties of the Transactional Lawyer: A Narrative Approach

Authors

Lori D. Johnson

Document Type

Article

Abstract

(Excerpt)

This Article posits that narrative theory can assist the transactional lawyer in walking this tightrope effectively and ethically.

Specifically, this Article proceeds to show that the use of narrative techniques, specifically those proposed by Walter Fisher, can assist transactional lawyers: (1) in understanding their clients’ goals more fully; (2) in more effectively advancing their clients’ goals through persuasion; and (3) in creating complete, holistic documents to govern the proposed deal. As such, the appropriate use of narrative techniques and understanding of narrative theory can enhance the skills of transactional lawyers, and improve client outcomes.

This Article proceeds in three Parts. Part I briefly introduces narrative theory and provides background on the current paucity of scholarship regarding its use in the areas of transactional and corporate law. Part I continues by describing how sophisticated transactional lawyers behave as advocates in large-scale transactions, and how this advocacy role relates to the growing importance of narrative in transactional practice.

Part II discusses narrative theory in more depth, specifically Walter Fisher’s theory of narrative rationality and its application to litigation and appellate practice. Part III proposes methods of how, within the deal-making construct, a transactional lawyer can wield narrative techniques to improve persuasion, document accuracy, and client outcomes. Part III also discusses potential risks associated with the adoption of narrative techniques by transactional attorneys and debates surrounding the ethics of using narrative as a persuasive tool. This Article resolves that the benefits of employing narrative theory in transactional legal practice outweigh any potential risks associated with its use. Finally, the Conclusion summarizes potential best practices for effectively incorporating narrative theory into the boardroom, and not just the courtroom.