I really like this post by Ken Adams over at Adams Drafting about the use of “magic words.” Like the terms
AbraCadabra, Hocus Pocus, Bibbity Bobbity Boo, we don’t know the precise meaning of these “magic” terms. Rather, we take for granted an assumed meaning and expect something magical to result. In the law, assumptions can spawn a whole heap of trouble, particularly where expectations and reality diverge.
Adams defines his magic words to be legalese terms employed when the drafter “gropes” at an intended meaning instead of clearly articulating a concept in a contract or document. By doing so, the drafter relinquishes control over the document to custom or the courts to fill in the gaps. When the drafter loses control, the ultimate effect of the words may not be the effect initially intended.
Adams highlights “represents and warrants”, “arising out of and relating to” and “time is of the essence.” Some legalese is merely redundant and can be easily excised without affecting the meaning. Other “magic words”, however, are more difficult to address. How about “during the period of”, which begs the question “define period?” “Providing that” also raises questions in the reader’s mind. Does the writer mean that the language following is an exception to a previous statement? Is the following language a condition to the previous statement? Or is it possible that the following language has little or no meaning in the overall context of the document?
Clients hire lawyers to exert control over a matter, be it estate formation, legal transactions, litigation or other events of legal significance. By using Adams’ “magic words”, the lawyer casually abandons control of the matter, skirting ethical obligations to zealously represent the client. Recall Goethe’s “Sorcerer’s Apprentice” who employs magic that he cannot yet fully control, only to find himself at the mercy of both the magic and his absent master. Avoid “magic words” and invest time and effort at the outset to understand your intended meaning and clearly articulate that meaning in your writing. You will retain control over your intent and may even avoid a magical flood at some later date.
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