Corporate & Securities Law

Defining ?Magic Words? and Related Terminology

By Ken Adams

I’ve found myself using increasingly often on this blog the phrase “magic words,” so I thought it high time that I explain, to myself and anyone else interested, what I mean by that phrase.

It’s in widespread use in legal circles?a search of Westlaw’s “tp-all” database retrieved over 3,500 items that refer to “magic words.” But generally it’s used to convey a meaning rather different from the one I intend. In the following definition, which I just cobbled together, the first meaning is the general meaning, and the second meaning is my own.

magic word, n. 1. A word required to be used in a legal document, as opposed to any one or more other words conveying broadly the same meaning, in order for that document to be legally effective to accomplish the related purpose. 2. A word that is used in contracts and that conveys for purposes of contract interpretation, according to one or more judges and lawyers, a meaning significantly different from any meaning that likely would be attributed to that word by clients and many lawyers.

And here’s some related terminology:

magic-wordery, n. The act of treating certain words as magic words for purposes of contract interpretation <During our negotiations, I could rely on Timmins to trot out some predictable magic-wordery>.

magic-worder, n. One who engages in magic-wordery <Watch out for Timmins, he’s a true magic-worder>.

magic-word, vb. To engage in magic-wordery <Timmins magic-worded me to death over his “best efforts” provision>.

It’s clear from this terminology that I’m not a fan of magic words. In particular, this “On Language” column in the New York Times notes how the suffix -er has become a useful way to turn a simple noun into “a handy partisan put-down.”

But if you think this terminology is directed at you, please don’t take umbrage. I’d like to think I can poke fun at a pernicious practice without offending individuals. In other words, Don’t hate the playa, hate the game.

Full post as published by AdamsDrafting on April 13, 2010 (boomark / email).