Last week, Sherry Fowler explained what transactional lawyers do. Professor Bainbridge liked her explanation, but a reader wanted more details about the differences between transactional lawyers and litigators. Sherry’s response was a post titled “Why I’m Not Interested in Litigation.” Here’s a sample--
[B]asically 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.
. . .
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.
. . .
[C]ivil 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.
Sherry’s depiction of transactional lawyers was right on; after all, it’s what she does. But her depiction of litigators (or “trial lawyers”)—the crying over split milk, the squabbling in the backseat—while not necessarily “wrong,” relied on colorful metaphors chosen to illustrate her bias against trial lawyers (or more properly, her bias against working as one). On my site, I posted a preliminary response that proved I was biased too, only in the other direction.
The end result? I’m not sure. Sherry likes being a transactional lawyer; I like being a trial lawyer; our posts both employ metaphors that are chosen to justify our earlier decisions about the type of law we want to practice.
In any event, given our differing views about career opportunities for lawyers, I sense our personalities are different too, which leads to an obvious point: ultimately, the choice lawyers make about careers has a lot to do with their own personalities and biases, e.g., whether, to make use of Sherry’s memorable phrases, they’d rather have an opportunity to be “verbally clever” crying over split milk, or have a slightly less exciting job that allows them to feel they are driving “the engine of prosperity forward" (while recognizing that these are generalizations, as some who commented on Sherry's site pointed out).
Of course, there are many other career opportunities for lawyers besides transactional law and litigation. It brings to mind an earlier cross-blogging conversation that arose out of a post I did about novelist Richard Ford, and the way his lawyer-characters feel hemmed in by the law. (Sherry and TPB responded, among others.) I don’t agree that the law is confining, and that’s one of its wonderful qualities. We may never agree which type of law is the “best” calling, whether it’s transactional law or litigation or teaching law school or being a clerk or being a judge or writing about Madison County on overlawyered.com. But for those just entering law school, they can be assured that when they graduate, there will be some sort of legal role to fill in the “real world” that will be suited to their personalities.
I suppose that much of the bellyaching by lawyers about their careers stems from a mismatch between personality and job; it happens a lot, I suppose, since the huge expense of a law school education means many of us choose a job not based on our personalities, but based on which firm is willing to pay us the most money. (That’s how I made the decision; I just got lucky and liked it.)
In a perfect world, one’s choice of a job would always match one’s personality. If it weren’t for the economic problem, it would be easy. Consider the wide choice of career options and trajectories open to lawyers: in-house corporate lawyer, general counsel, CEO; law professor, law dean, university president; legal correspondent, legal columnist, book author; county councilman, state senator, state governor; law firm associate, law firm partner, law firm managing partner.
Obviously, I’m just scratching the surface, not to mention foreshortening the career paths, but the point is easy to comprehend. For me, the choice to acquire a law degree as opposed to an MBA was due in a large part to what I perceived as the wider range of options upon graduation. Right choice? For me, yes. And is my work as a trial lawyer suited to my personality? Again, yes.
Meanwhile, it seems as though Sherry’s work as a transactional lawyer is suited to her personality, too. About this very fortunate circumstance, at least, we can both agree and be glad.
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