Two roads diverged in a wood...
December 2, 2007 6:55 PM   Subscribe

Law Filter: Transactional vs Litigation. How to choose?

This is somewhat of an extension to a question I asked previously about making career decisions while in law school.

The main choice seems to be picking either transactional or litigation. What's the best way to determine which one is the right fit? Are some people "just born" to be litigators? Does it all come down to comfort with public speaking, or is the nature of the work significantly different between the two?

I realize that a lot will depend on where/what practice area you work in, so let's assume big firm; antitrust.
posted by doppleradar to Work & Money (18 answers total) 5 users marked this as a favorite
Are some people "just born" to be litigators?

If you've done it for any amount of time, you know the answer is yes.
posted by Ironmouth at 7:03 PM on December 2, 2007

If you're shooting for a big firm, ask yourself (realistically) whether you plan on being there for any length of time greater than three or four years. Reason being, until you've got some time under your belt, you're just a fungible JD that happens to have a human attached. Litigation associates won't set spend a day in court; transactional associates won't make a single deal. My understanding is the real difference between the two won't be very noticeable during that time.

Of course, it all depends on the firm, the partners, and the practice group within those two big headings, too.
posted by electric_counterpoint at 7:32 PM on December 2, 2007

You don't have to choose the road in school. If you want to litigate, set yourself up to eventually get a job as an assistant US Attorney. It's the best experience and the highest profile springboard to future career opportunities. Spend some time with your career counseling office to attend to the details.
posted by caddis at 7:36 PM on December 2, 2007

By the way, I think it would be hard to do antitrust work without being some sort of litigator. You can do M&A work and focus on antitrust issues, but you are still primarily doing M&A, not antitrust. Perhaps some folks in firms in these areas have superior knowledge.
posted by caddis at 7:43 PM on December 2, 2007

Best answer: As the question acknowledges, this is really only relevant if you're looking at BigLaw. This is one of the big questions the summer associate program at these firms is meant to help resolve. In most firms, the various practice groups try to "sell" themselves to the summer associates. Most summer associate programs try to give the summer associates a mix of projects (from the various flavors of litigation and transactional work), although this doesn't always work out as well as planned.

So if you get into a good law school, do well your first year, and get into a summer associate program at a big firm, don't sweat it -- they'll help you figure it out. Otherwise, don't sweat it, because it won't matter.

That said, I think that while a good litigator will be able to pick apart a deal (and fight over what some of those clauses really meant), it's a wholly different skill set than putting together the deal in the first place. Many transactional lawyers are excellent public speakers -- they are the ones that have to deal with the bankers, after all, and explain to the client why it's a Bad Idea to talk about buying out their "chief competitor"...

Sure, there are some tax lawyers that the firms would rather leave in the basement, and there's that ERISA specialist that no one really likes hanging out with, but... I know of many "transactional" lawyers who have huge "type A" personalities to rival the lawyers swaggering in the courtrooms.

FWIW, IAAL at an Amlaw 100 firm.
posted by QuantumMeruit at 7:49 PM on December 2, 2007 [1 favorite]

The main choice seems to be picking either transactional or litigation. What's the best way to determine which one is the right fit? Are some people "just born" to be litigators? Does it all come down to comfort with public speaking, or is the nature of the work significantly different between the two?

Pardon me if I have trouble articulating what I am thinking about your question. Bear with me.

I came into law practice not having known any real attorneys. My view of law practice came from L.A. Law. Seriously, even after graduating from law school my main perceptions of law practice were T.V. lawyers.

If you practice law for any length of time, you will see things that will amaze you and defy all of your attempts to rationalize and explain. You will meet someone who is awkward, shambling, and seemingly disorganized, who is a brilliant litigator, who doesn't fit any of the stereotypes of your typical brash litigator. You will meet the typical, dapper, brash attorney, who is almost a comical caricature of the hard-driven, testosterone-fueled litigator, who is a laughingstock and doesn't get very far in the profession because nobody can take that combative stuff seriously. You will meet the normal, friendly, average-seeming person who, despite his mild manner that you would assume is better suited to transactional practice, is terrifically successful as a litigator. Law practice, when viewed from up close, has a way of evading all the categories that popular culture uses to understand it.

There are no rules that can adequately explain success or failure in law practice. To go into law school with these kind of absolute, categorical blinders on, will be to limit yourself and your career planning unnecessarily. It's putting the cart before the horse. Judging from this question and your last question, you are overthinking this plate of beans.

The way to determine the best fit is for you to go into law school with an open mind, study hard, get summer jobs, and decide, after being informed by first-hand experience, what you want to do. Trying to decide "transactional or litigation" in 2007, when you are not even starting law school until 2009, is probably a big waste of time, as urgent as it might seem to you right now.

If you go into big-firm practice, chances are you will not stay there.
posted by jayder at 8:19 PM on December 2, 2007 [1 favorite]

I knew when I was 7 that I was destined to be a litigator... and 20 years later that's where I ended up... in front of juries on a regular basis.

If you don't know... I would suggest going transactional. Besides, all of this is speculation until you start to get to look at offers.

Never watched a lawyer show in my life BTW.
posted by Mr_Crazyhorse at 8:28 PM on December 2, 2007 [1 favorite]

this is really only relevant if you're looking at BigLaw

The vast majority of actual litigation in this country does not involve BigLaw. If you really want to be litigating cases as lead counsel, you will heed this fact.
posted by Ironmouth at 8:41 PM on December 2, 2007

Best answer: Hrm. I'd like to show you some typical documents that you'd be working with in a big firm in the litigation or corporate departments. That should give you some flavor of what the practice is like.

For litigation: read the complaint and skim the other documents in the (admittedly giant, quite complex) IBM-SCO case. Look at the timeline, too. Imagine yourself helping write one of the many, many motions, or helping prepare for depositions (like this one). Also, ever use Westlaw or Lexis? It's like doing Google searches for legal cases, except more complicated. You'd be doing a good bit of that, too. You're gonna be digesting a ton of facts and research, and doing a lot of argument in writing. Do you like the idea?

For corporate: try reading some of the sample merger agreements here. What would you think of putting together (using modifications from a template, and many, many revisions), a document like this by interacting with a lot of other lawyers, investment bankers, and the like? Do you like the kind of structuring, careful organization, foresight, and negotiation of subtle points that go on during this process?
Also, would you enjoy skimming through a lot of the documents requested on a list like this? That would be due diligence.

Not all transactional is corporate, but that should give you at least some idea of the kinds of stuff that goes. If you're interested in specialty transactional areas (e.g. tax or employee benefits, imagine yourself reading the merger and other contracts with a particular eye to those provisions, reading carefully any diligence that deals with those provisions, etc.

Of course the above doesn't describe the more human or the most exciting parts of the job. You'll eventually undoubtedly be deposing people, and then get involved in settlement negotiations and possibly some trial work as a litigator. As a corporate lawyer, you'll eventually be negotiating the contracts (you might even do small not-too-controversial negotiations quite early on) and interacting with top corporate managers and influential finance people. But my links will give you an idea of what day-to-day work is likely to be like for you.

Disclaimer: these are just my impressions. I don't claim any kind of great insight or experience into these matters...
posted by Malad at 8:56 PM on December 2, 2007 [1 favorite]

After looking at the link to your earlier question, you are best off not worrying about this question until you have finished your first final exams in law school.
posted by Ironmouth at 9:34 PM on December 2, 2007

The fact that he hasn't even started a single law school class but is already worried about what type of practice he should do tells me he'd be best suited for litigation.
posted by notjustfoxybrown at 10:04 PM on December 2, 2007

When you are in law school, you will have the opportunity to do moot court; take a trial practice course; and possible work in a clinic. That's what will help you make your decision, not the opinions of some random internet people.

As someone who is completely TYPE A in my professional life, I hear where you're coming from. But chill out. You really, truly, have absolutely no reason to make any type of decision on this issue right now, and even more important, you have no information upon which to base a decision.

Apply to law school. Take some classes. Who knows, you might find out that you absolutely love property law, or contracts, or criminal defense. Or you might hate practicing and decide to apply your skills in business. The more sure you are about what 'path' you're taking now, the more stressful it will be when you realize it's not the right path.

Take a deep breath. You'll find something you love. Just NOT NOW.
posted by miss tea at 5:18 AM on December 3, 2007

Whoa. Just saw that you're not in law school yet. I agree with pretty much everything miss tea said. I'm pretty type A about professional stuff too, and I'm in law school at the moment. My $.02: things will work themselves out and you'll feel predisposed to one direction or the other once you've done some clinics and had some classes. But again, this is not the time to worry.
posted by craven_morhead at 6:37 AM on December 3, 2007

Best answer: What's the best way to determine which one is the right fit?

Try them both.

Are some people "just born" to be litigators?

Oh, yes. But even if you aren't, it doesn't mean you can't be a good litigator.

Does it all come down to comfort with public speaking, or is the nature of the work significantly different between the two?

Comfort with public speaking is not the most important factor. You've gotten some good suggestions. I would also suggest that one difference is whether you envision your legal life being spent in an adversarial, confrontational, public arena. That's litigation. If you envision your legal life spent more collegially and privately that's transactional work. (I don't mean to imply that there is no confrontation in transactional work -- there is -- but it's not a many-times-a-day confrontation like litigation).
posted by pardonyou? at 7:42 AM on December 3, 2007

I also want to add that it's been my experience that litigation plays more havoc with your schedule/life. You're subject to the whims of the court system and opposing counsel -- which often means more late nights, more weekend work, more missed vacations.
posted by pardonyou? at 7:47 AM on December 3, 2007

Best answer: Here's a consideration, drawn from an acquaintance base mostly of top-12 law schools.

Of those who started practice as litigators, 80% are still litigators, 10% have law jobs not specialized in litigation, and 10% are no longer practicing law.

Of those who started off on the transactional side, maybe 40% are still there, another 20% have non-transactional law jobs, and 30% are no longer practicing law.

It's not easy to draw clear lessons from this. While it certainly seems that it's easier to move out of transactional departments in law firms than litigation departments, there's a huge selection bias / self-fulfilling prophecy aspect to it. Litigation is elected by people who really want to be lawyers in general and litigators in particular. Transactional practices are the overwhelming choice of people who want to leave law quickly, or expect they'll want to do so.
posted by MattD at 8:29 AM on December 3, 2007

Make that 40% of those who began transactional are no longer practicing...
posted by MattD at 8:30 AM on December 3, 2007

If you are interested in antitrust, you should bear in mind that the market for this practice is segmented: the top wall street firms tend to handle bet-the-company antitrust matters, whether they are putting together mergers or defending antitrust actions brought by the government. By their nature, these matters tend to involve very, very large institutions.

Most AmLaw 100 firms that are not major wall street firms (including mine) have antitrust practices (working on behalf of smaller companies defending antitrust investigations, performing antitrust audits, and reviewing deals for possible antitrust issues), but their antitrust lawyers often need to fill their plates with other types of non-antitrust work in order to stay busy.
posted by A Long and Troublesome Lameness at 6:54 AM on December 4, 2007

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