At some point (usually early in law school), a new lawyer considering a career in Big Law decides whether to become a litigator or a transactional lawyer. It’s a big decision—one that can affect your entire working life. What are the best criteria for making that choice? Once decided, are you stuck with it? Where can you get good advice?
Let’s look at the differences between transactional law and litigation. Simply put, transactional practice is the creation and review of documents that bring individuals and companies together: mergers and acquisitions, private equity, real estate transactions, drawing up contracts, participating in closings, etc. Lots of research, plenty of meetings, no time in court. To quote Bonnie Neuman, a partner and head of real estate finance and co-chair of the finance group at Cadwalader, Wickersham & Taft: “I was initially drawn to transactional practice areas of the law as I appreciate the collaborative nature of the work, where both sides are working towards a common goal of getting the deal done.”
Litigation is the process of resolving disputes, often in a courtroom, although most (but certainly not all) lawsuits settle before going to trial. So, to oversimplify, transactional practice is collaborative, while litigation is oppositional. If a situation may require a lawsuit, litigators go to work. Transactional attorneys work on the agreements if both parties agree that a lawsuit is inappropriate.
How do you choose which is the practice for you?
Transactional lawyers (often called “deal” lawyers) focus on business and corporate issues that affect their clients. So, while this type of law involves copious amounts of research, that research consists more of studying the client’s needs and perspective rather than legal texts. Transactional matters usually don’t take as long as litigation cases, allowing transactional attorneys to be involved in a greater variety of matters.
On the other hand, litigators often have more exposure to the public, engage in more dramatic issues, and work in a more recession-proof field (people sue in good times and bad).
Generally speaking, transactional law is often a more direct path to leadership positions at large and midsized firms, although Ross Todd has written an excellent column on litigators turned leaders. One example is Melissa Jones, litigator and firm managing partner at Stoel Rives, who says, “Whatever our area of practice, we all have opportunities to be leaders at our firms.”
Can attorneys change practices? Of course, although it involves developing a different range of legal skills. Lawyers who start as litigators may have an edge when entering a transactional practice, knowing where to find the contractual loopholes they may have had to navigate in litigation. Still, there are significant differences between drafting motions and drafting contracts.
In short, know yourself and get good advice from lawyers on both sides before committing to a practice, but don’t fear getting stuck in the wrong field!