I’m Debating Litigation Vs. Transactional

by Ex-Bitter on August 15, 2008 in Columns

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I know the initial answer will be “whatever you want” or “whatever you’re good at” or “whatever your personality traits fit, etc.” But overall, what’s better for a person’s career/career options, big firm transactional or big firm litigation? And what type of transactional, etc. is better to go into? Thank you.

Great question. And my answer is definitely not “whatever you want” or “whatever you’re good at.” The choice between litigation and transactional comes down to this: Do you want to be a lawyer for the rest of your life? If you don’t, I’d definitely suggest focusing on corporate (non-litigation) work. If you do, and you don’t like business or enjoy reading the Wall Street Journal, you should become a litigator. Sounds simplistic, I know. But I promise you this: If you don’t like reading the Journal, you’re definitely not going to like drafting a proxy statement.

In my opinion, the major advantage of corporate law versus litigation is that it’s much easier to transition out of law into business since the skill set you develop is more readily transferable to non-legal, business jobs, such as investment banking, private equity, and real estate development. As far as what type of transactional work you should focus on… That’s up to you. It also depends on the size of the firm where you work. At the big firms, there tends to be several distinct departments (e.g., Mergers & Acquisitions, Corporate Finance and Financial Institutions), while at the mid-size and smaller firms, things are far less structured and specialized.

But if you don’t have a so-called business mind and you actually want to be a a real lawyer, you should definitely become a litigator. It’s where the rubber meets the road in the legal world. It’s real law. Research, writing, motions, and every once in a while, an actual jury trial. Plus, it’s recession-proof. While corporate work slows down in an economic downturn, litigation doesn’t. People sue each other in good times and bad. Fact. You might be writing and researching your ass off, but at least you won’t have to worry about getting laid off.

Hope that helps.

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Greeny

Litigation is for lawyers. Transactional is for people who just wanted to make money and should have gone to business school in the first place.
Hedging Lawyer

Even if its a better “out”, transactional work might still be a bad choice for those aspiring to actual create economic value. You can love reading the Journal, investing in stocks, be entrepreneurial, etc., and absolutely hate transactional work.
Take myself: I joined my firm’s M&A;section after realizing during third-year (and summer clerkship) that a long-term legal career wasn’t going to happen. I reckoned that it would be the better way to transition out.
What I failed to realize is that an M&A;practice is absolutely miserable for a person with things like myself. Sure, I thought constantly about great business ideas–hell, I developed plans to start one of my own–but that didn’t have anything to do with all the crap M&A;lawyers do. I was miserable. After 7 months I switched to litigation.
As a commercial litigator, I had much greater exposure to actual business operations than I ever did as a corporate lawyer. Also, the personality of the litigator (and this is some sterotyping here) is more in tune with the businessman: agressive, calculating, and, in the case of copmplex plaintiff’s work, creative.
Been there

I agree with the gist of the article – if you want to go into business, become a general counsel of a company, etc. transactional is the way to go. But personality is also important. Most transactional attorneys are uncomfortable if not terrified at the prospect of doing a trial or even an administrative hearing. Most litigators would fall asleep doing the paperwork for a deal. Don’t try to do something that doesn’t suit your personality.
JC

I disagree that litigation is for “real lawyers.” I am a litigator and guess what I do 99% of the time? I sit at a desk and review documents, just like the corporate guys. Two years out and no trials, and I haven’t had a motion in a year and a half. The only difference is, litigators make less money and have less opportunities. I would advise strongly against ever becoming a litigator with the expectation that it will provide significant advocacy experience.
Banker

I did both. I began my career in litigation, transitioned to transactional work after a few years, and then transitioned to a combined practice (albeit at a smaller firm where such was possible). The skills I developed as a litigator early on helped me, in my opinion, become a better transacational attorney and, now, even help me in my banking career (I joined a national bank after 15 years of practice). Now, instead of questioning witnesses and thinking quickly about their responses, I question clients and prospective clients. Also, general counsels to whom I’ve spoken have indicated (to me, anyway), that they value litigation skills when hiring, sometimes more than transactional skills.
Anonymous

Just start out with one; and if you get the hankering to switch; so so within the first 3 years; otherwise you’ll be pidgeon-holed. I can tell, you tho, that it is better to start in corporate, then do litigation, as going the otherway is more hit/miss. You need to have the focus on details at the outset, which I think is better served in corporate. Once you begin to know something, then you can be more effective on the litigation front, where the issues are discrete.
Interesting

So it sounds like to me that transactional is the way to go. It seems like it is impossible to have a successful litigation career at big firms or at lease really hard, whereas transactional will open many doors. Is this accurate?
Brett

I can’t say much about transactional; but I can tell you that I love litigation. I’ve done nothing but “litigation” for 16 years. I started out as a County Attorney; diving head first into criminal trials. After five years of this torture (really) I ended up getting recruited by the firm I’m a partner at now. I don’t make as much as my friends in the transactional world; but I get off at 5:30 every day, I don’t work weekends, and I have a TON of fun in court. It takes a certain personality to do either and I’ve known from the start that I don’t have what it takes to endure transactional stuff.