Why I'm Not Interested In Litigation

Here is an off-the-cuff answer to commentator Chuck, who found nothing distinguishable in my description about transactional law to make it stand out from litigation. The quick answer is, like the answer to most questions that might come to mind when reading this blog, what the hell does she know anyway?

But basically I've never been able to get that interested in litigation because litigators help people cry over spilt milk. You're essentially fighting over the past. Who cares? Transactional lawyers help people invent the future, and align the incentives of people to minimize the chances they'll end up fighting over the mistakes and problems that do arise. Philosophically, I like the idea of thinking about a world that hasn't yet been invented better than pointing fingers and making up stories about something that already happened. Even if many of the fun skillsets that are used in both kinds of practice are the same. I can even believe some of the things litigators do in a day are more exciting and fun -- more negotiation, more people time, more chances to be noticeably verbally clever. But the overarching purpose? I just don't get excited about it.

The prosecutors and the defense attorneys, that's the kind of litigation work I can understand feeling passionate about because it is fundamentally important in our society. I've just chosen not to do that. But civil litigation, it's kids squabbling in the backseat of the car, while the transactional types help entrepreneurs drive the engine of prosperity forward, bringing new business relationships into being.

Oh boy, I can already imagine that this post is going to get me into a lot of trouble.....

Comments

[Anthony]

Granted, most litigation never reaches precedent-setting stages (though some practices like government and appellate work are more likely be precedential). But what attracts many to litigation is that in hard cases (those in which the transactional lawyers haven't messed up) effective litigators are forward-looking. The opportunity in every dispute to advocate a rule that will clarify both your client's rights and the course of the law keeps me hungry for the next case.

One might say that transactional lawyers play the game for which litigators help write the rules, although that would be as much of an oversimplification as saying that litigators help people cry over spilt milk.

[Balasubramani]

litigation = adrenaline. :) I think and I'm gonna get in trouble for saying this---there's more ability to differentiate in litigation. At the lower levels particularly I FEEL that you can be half ass and still cut it as a transactional person. You may be committing but it may never see the light of day. Anyway I;ll think about it somemore. off to vacation. :)

[BC]

Crying over spilt milk, or vindicating the rights
of someone taken advantage of. It's all in the
eye of the beholder.

[Scheherazade]

BC: I was WONDERING when someone would make that comment. You are right, of course.

Anthony: Right as well, and elegantly said. That's the most exciting part of the litigation support I do -- realizing that the unanswered questions are our little opportunity to get a judge to articulate a new little piece of the legal landscape. But I'm generally not an abstract enough thinker to be carried along with that kind of motivation. Anthony, I think you'd be a good blogger and hope you'll start one....

Balasubra: wowsers. The gloves are off. Wonder what readers will have to say about that? I haven't a clue whether you're right.

[brett]

Sherry, in a perfect world, litigators wouldn't be necessary. But sometimes you transactional people fail to imagine (ref. your first post on this) a certain scenario, or, more likely, no one even consulted a lawyer before making a deal. I'm continually amazed at the number of seven and eight-figure deals that are executed on the back of an envelope or, worse, orally. Until people stop doing that, we litigators are necessary.

And believe me, there are half-assed litigators out there. Lots of them.

[Balasubramani]

Well I obviously offer up some off-the-cuff comments to a tough to discuss issue. In the end, whatever works for you, works for you. I am a reformed transactional lawyer and the adrenaline rush that I get from litigation (both trial and appeals) is key. I never played sports in high school. Maybe this makes up for that.

Anyway, interesting post.

[C.E. Petit]

As a litigator, part of my job is to keep the transactional lawyers honest. It's not just a question of the "parade of horribles" or "unconsidered instance" turning around to bite someone in the butt. Too many transactional lawyers take the "law school casebook" approach to writing contracts: If there's a case somewhere that even touches on the outlandish possibility, throw it in. There's something to be said for being thorough; there's also something to be said for considering not just the abstract right(s) created by a contractual provision, but the cost of enforcing those rights. That cost is usually far, far higher in emotional and personal terms than any award of damages, particularly in this age of disdain for equitable relief under contracts.

Ideally, litigators and transactional lawyers should work together as a team. Litigators can be a reality check on the need for and cost of some clauses. Conversely, by seeing actual negotiations in process, litigators can earn a lot of insight into both the kinds of people involved in particular negotiations (for example, in the publishing industry one never knows when one will need an expert witness!) and, perhaps more importantly, the best way to get admissible evidence.

The other thing that litigators do that transactional lawyers don't do enough of is gap-filling, particularly in statutory interpretation. See, e.g., Ellison v. Robertson, ___ F.3d ___ (9th Cir. 2004) (first appellate interpretation of 17 U.S.C. § 512(i), and one that ISPs had better pay attention to!) (humbly buffs nails). Since statutory interpretation is a very necessary part of contracting... or at least should be, see NY Times v. Tasini...

[Beldar]

Some litigation is aptly characterized as "spilt milk" — just a cost of doing business, a distraction, a nuisance.

Some clients, though, are drowning in the spill.

I'll never forget an anguished two-hour phone call I had at dawn on Christmas morning one year from the CEO of a public company I was in the midst of representing in a six-week long "bet the company" lawsuit. Or a hospital bedside meeting I conducted with a personal injury client (and his family) whose career had just been catastrophically ended and whose economic future was being thrust into my hands. Or a lawsuit I tried in bankruptcy court that determined whether a company would emerge from bankruptcy reorganization largely intact, or instead be dismembered and partially liquidated — with literally thousands of working-class jobs at stake.

And sometimes my skillset as a trial lawyer becomes very useful to clients in planning for and structuring their ongoing businesses. For several years I represented a large homebuilder in its lawsuits with customers; over the course of that representation, I not only helped revise their standard deal documents, but gave "preventive medicine" seminars to their customer service staff to help train them how to resolve the vast majority of their complaints and disputes without my direct involvement. In every house they sold, some discrete portion of their real economic cost was attributable to litigation and litigation risk; by minimizing those costs, I felt like I was helping them sell more houses and helping more families qualify to own their own homes.

Negotiating and settling lawsuits can also call upon the skillsets more regularly honed by deal lawyers. Sometimes there are "win-win" resolutions to lawsuits, but if a trial lawyer's imagination is limited to "what assets can we seize to collect on our judgment?" he's not likely to imagine, much less realize upon, those results.

With due respect to Balasubramani, I think he's badly wrong. Half-assed is half-assed on either side of the professional fence. A busted deal closing can be just as definitive as an adverse jury verdict. The overwhelming majority of lawsuits end up being settled, not tried to a definitive conclusion; oftentimes what constitutes a "good settlement" is far more subjective and indistinct than what constitutes a "good deal"; and it's certainly as easy for sloppy trial law practice to be buried over and hidden in them as it is for sloppy transactional practice to be buried over and hidden in the deal world. And as I mentioned in my comment to Sherry's earlier post about transactional lawyers, the financial and economic stakes of their work often — but not always! — dwarfs the stakes we trial lawyers deal with.

[RLD]

I particularly like transactional practice because of the clients - in my experience, they're rarely pissed off when they come to see you. They're typically excited about starting a new business or selling their business or expanding their business or signing an employment contract or something similar. They're not in mid-fight over something someone already screwed up.

w/r/t half-ass work, I've found that you can spot the poor drafter immediately - the document is either way too complex or simply doesn't address the situation well. If people are sliding by, it's a result of their own bosses' ignorance (or need for labor), not because outside attorneys can't see it.

The other thing to keep in mind is changing circumstances. I don't know how many cases I've read (but it's alot) where the reason behind the suit is the changing circumstances (or relationship) between the parties and the fall-out is over how to address this. As I've told several clients before, you can't draft away all potential problems but you do your best to allow your client to achieve what they want to in the document and to protect them as best you can from future problems.

All told, I wouldn't switch to litigation for anything. But alot of that is based on personality and what I find rewarding, not on what I consider "better".

[Balasubramani]

Beldar's point is duly noted. I guess I just enjoy litigation. Although I HATE discovery and I'm going through a stressful phase. I rarely looked at memos or agreements I drafted and thought they looked nice. I actually (and it's probably an annoying practise) send briefs I write to people that I think may have a passing interest. . . .

[SecretAgentMan]

Never thought of it that way. I'll have to remember to be more respectful of my t-crossing, i-dotting, bow-tie-wearing, persnickity transactional colleagues. Seriously.

[Charlsie]

Wow, I'm impressed by how many lawyers read your blog. I'm in law school, and all we really do is play on the internet, during class, in the library, all the time,(multi-tasking) and I was a little worried about not being able to spend time on the internet in the real world. But, I am encouraged to know that just as many real attorneys play on the internet as law students. Of course, if I don't stop playing on the internet and reading blogs of people I don't know, I'm going to fail my finals this next week, and I won't have to worry about being a real attorney.

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