Litigators are my people. Back when I practiced law, I litigated. Many of my friends and contacts in the legal profession are litigators. I’m obsessed with judges and law clerks, and they’re almost all litigators. I’m married to a litigator.
And I must confess that when I was a practicing litigator, I held transactional types in a vague sort of disdain. They’re not real lawyers, I’d think to myself; they’re just handmaidens to bankers, lackeys of corporate executives, functionaries who “paper up” deals negotiated by others.
One can understand how such prejudices develop. Depictions of lawyers in popular culture — in books like To Kill A Mockingbird, movies like My Cousin Vinny, and television shows like Perry Mason — focus on litigators. The lawyers we lionize as historical heroes — Clarence Darrow, Thurgood Marshall, Ruth Bader Ginsburg — tend to be litigators. Law school, driven by the case-method model of legal education, teaches law in a litigation-centric way.
But now, with the benefit of two decades of working in and around the legal profession, I have reached a different view. First, deal lawyers are very much “real lawyers.” They are the lawyers who allow individuals and entities to grow and flourish, enabled and protected by the rule of the law. They are the lawyers who help people buy homes, launch businesses, raise money for those businesses, and invent new products, secure in the knowledge that their interests are protected.
Second, from the perspective of an individual law student or lawyer, if you have to pick, you’re better off working as a transactional lawyer than as a litigator. In other words, with apologies to Waylon Jennings and Willie Nelson, “Mammas, don’t let your babies grow up to be litigators.”
Okay, that’s a bit exaggerated. Working as a litigator can still be a very satisfying and successful career. If you love advocacy, written and oral, and want to be pursue a career in litigation, then by all means, go for it. Our society needs talented trial lawyers and litigators, to protect the legal rights of everyone from immigrants and the indigent to Fortune 500 companies and high-net-worth individuals.
So here’s what I will say, a far more modest claim: if you’re a law student or young lawyer who is choosing between practice areas and really can’t decide, and you’re focused on pragmatic considerations such as compensation and career prospects, then pick corporate or transactional work over litigation. If you can’t stand reading contracts and you love writing legal briefs, then of course you should go litigate. But if you don’t feel such a calling to litigation, finding yourself equally drawn to corporate law and the courtroom, then the tie should go to transactional practice.
Why? Here are three reasons (admittedly Biglaw-focused, but Above the Law, despite its expansion into the in-house and small-firm realms, is still Biglaw-centric).
1. Biglaw and corporate legal departments are run by transactional lawyers, not litigators.
Putting to one side litigation-focused or litigation-only firms like Boies Schiller and Quinn Emanuel (of which there are just a handful), the Am Law 200 and Vault 100 law firms are dominated by corporate lawyers and driven by corporate work. At the vast majority of so-called “full-service” firms, the services that bring in the biggest bucks — and carry the greatest clout, because in Biglaw, money equals power — are practices like mergers and acquisitions (M&A), finance, and private equity (PE).
Are you an associate aspiring to make partner, a partner aspiring to enter firm management, or an in-house lawyer aspiring to become the general counsel? You’ll have a much easier time doing so as a transactional lawyer than as a litigator.
Over time, this orientation toward the corporate within Biglaw has only increased. Firms that were once viewed as “litigation shops,” such as Kirkland & Ellis, are now dominated by their M&A and PE practices. And even firms still known for their litigation strength, such as Paul Weiss, have seen greater growth in recent years on the transactional side of the house.
2. Opportunities for transactional lawyers are better and broader than those for litigators, both within Biglaw and beyond.
Now that I’ve been working for a while as a legal recruiter, I have been struck by the vast disparity in the market demand for litigators versus corporate lawyers. There are excellent opportunities for elite litigators, who have become a specialization of mine — I have had success placing litigators who graduated from top schools, clerked for top judges, and worked at top firms — but overall, lateral opportunities for transactional attorneys vastly outnumber lateral opportunities for litigators.
This varies depending on the state of the economy, of course, and right now the robust deal market is fueling demand for corporate lawyers across a wide range of specialties. When the markets turn, this demand will subside, and the market for litigators might pick up, since litigation is somewhat countercyclical. But a “hot” market for litigators never gets nearly as hot as a hot market for corporate lawyers.
And when it comes to life beyond Biglaw — i.e., exit opportunities — it has long been the case that transactional types enjoy more and better options than litigators, even in down economies.
If you’re a Biglaw litigation associate looking to leave, your main options are going to be another firm, government, or in-house (and the universe of in-house litigation jobs is limited). In contrast, Biglaw corporate associates go all over the place. They might, and often do, wind up at other law firms. But they also go to banks, hedge funds, or private equity firms — sometimes in legal roles, sometimes not. They venture beyond the financial world to join other types of corporations as in-house counsel, since there actually are a decent number of in-house jobs for corporate attorneys. They move into pure business roles for corporations, or they launch businesses of their own. The experience of a transactional attorney is much more transferable, to a wider range of outside fields, than the experience of a litigator.
3. People “like” their transactional attorneys more than their litigators.
Okay, this is a bit tongue-in-cheek. It’s hard to account for taste in personalities, and if anything, the stereotype is that litigators (or at least trial lawyers) are fun and funny, with larger-than-life personalities, while corporate lawyers are more staid, even a bit boring.
But here’s what I will say, which I do think is fair: clients generally have more positive associations with their deal lawyers than with their litigators, and clients are happier to hear from their deal lawyers than from their litigators.
And this makes perfect sense. Clients go to their transactional attorneys to get things done, generally of a positive nature — e.g., to incorporate a new business, to raise additional capital, or to execute a transaction. In contrast, clients go to their litigators because something bad has happened — e.g., they’ve been taken advantage of by a counterparty, harmed by a competitor, or charged by the government. As a result, litigators often see people at their worst. Clients who turn to litigators are often under a great amount of stress — and these clients are often not much fun to deal with.
(Now, there is a flip side to this. When a litigator achieves a great result for a client — keeping that client out of prison, allowing that client to maintain custody of a child, saving that client from a ruinous judgment — the gratitude can be hard to match. Litigators can literally save their clients’ lives — think of defense attorneys in capital cases — whereas that can’t really be said of transactional attorneys.)
Please don’t get me wrong: I love litigators, I always will, and I’m grateful to live in a society where litigators are available to protect me, whether from individual or government wrongdoing. As I said at the outset, litigators are — and always will be — my people.
But what I will say now, as someone older and wiser than I was as a law clerk or junior associate, is that I deeply respect, admire, and enjoy dealing with transactional attorneys. There might not be many fictional depictions of them, but the work that they do is very real — and the careers that they enjoy, while perhaps less heralded than those of litigators, are no less satisfying.
P.S. I’m always happy to hear from lawyers from all different types of backgrounds, but I’m especially eager to expand my network of corporate associates and partners at top firms. Please feel free to email me or connect with me on LinkedIn.
David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at firstname.lastname@example.org.
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