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What Is the Difference Between Transactional Law and Litigation?

When the average person thinks about the job of a lawyer, they automatically think about litigation and court cases. Contrary to that impression, the average lawyer is usually involved in legal business transactions. Professor Robert Miller contrasts the two types of legal practice and explains how a lawyer's role and relationship with the client can vary greatly in these different areas. https://youtube.com/watch?v=-MYwAx5tOKk


Litigation is what most non-lawyers know about the law. Lawyers go to court. They argue in trials, they cross examine witnesses, they make an argument to the jury. In appellate litigation, they go before courts like the United States Supreme Court, and they argue a case in front of a judge or judges. They are settling disputes. That's what litigators do, but that's not really what most lawyers do. Most lawyers are transactional lawyers, Transactional lawyers don't get involved in disputes. It's kind of our job actually to make sure disputes don't happen in the first place. Transactional lawyers advise clients, who are for the most part entering into business deals together. What kind of business deals? All kinds, banks lending money to companies, companies accessing capital markets by selling debt securities to the public, or to a bunch of investors in a private placement. One company acquiring another in a merger or an acquisition, the creation of new kinds of financial products like securitization transactions, licensing IP rights, all different types of business deals, in which lawyers participate by advising their clients and helping their clients structure the deal, to achieve the client's objectives in a way that also works for the parties on the other side, because this all involves a voluntary agreement between parties. Litigation, if you think about it, involves representing parties whose dispute has become so bitter that they cannot settle it themselves, but have to have the government do it for them. Transactional work involves representing parties who are going into business together in some form or another, because they think that both of them are going to get rich by doing it. It produces a completely different feeling. In a transactional setting, the parties who are coming together to do a deal already have a very high degree of trust in one another. If you think that the person on the other side of the negotiating table is a crook or a fraudster, or even just the kind of person who doesn't live up to his contractual obligations, you don't go into business with that kind of person. You have to have a pretty high degree of trust just to sit down at a negotiating table with someone. When a lawyer comes to that type of situation, what the lawyer is trying to do is to take the encoded business deal that the parties have already basically agreed to, and work out the details in ways that protect his or her own client's interests while at same time, making sure that the other party is still willing to enter into the deal. And that means, pretty much, making sure that that party's interests are respected as well. Because if that party's interests aren't respected as well, you can be pretty sure that the smart people on the other side of table will figure that out pretty quickly, and there will be no deal. The art of transactional law is to figure out how to make everyone better off. That means when you come into a transaction as a deal lawyer, you have to understand the business is involved, how each party is making money, that involves knowing something about finance. That also involves knowing something about accounting, because accounting is how we keep track of the money we're making. And it also involves a great deal of a quality difficult to describe, but that might be called judgment or business sense in order to figure out what's realistically possible for the people around the table.

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