法律系作业:The Litigation Versus Transactional Laws Law Essay

在法律学校，最难解决的问题之一就是选择一个诉讼还是事务性的法律职业。寻求这个问题的答案，把它作为年轻的法律精英们毕业后的方向和想要踏上的道路的一个选择。 从法律学校毕业后，某些人对他职业生涯发展的实质性方向有一些模糊或高度集中的概念，这是很常见的。不管它的设计是针对一个大型公司中不同部门之间的流动，还是在一个小型的公司，用于一个特定的实践，确定该专业的过程就开始了。真正有压力的是确定职业的方向，是作为一个交易，诉讼，税务，房地产还是知识产权律师。

 

不了解本文中提到的术语是很正常的。“交易法”指在处理商业事务时由当事人提出的交易的法律（即谈判合同）和各种各样实质性的法律规定，这些法律规定影响或限制与商业事务有关的计划、谈判和文件的起草。肯尼思克利在他的dissertation教学事务法中将事务法定义为“主要侧重于当事人和与商业交易形成，谈判，文件起草，完成有关的专业人员的法律。”因此事务律师必须了解商业，金融，和交易经济方面的交易，以便制定切实可行的合同和信息公示文件，进行尽职调查，以及为客户提供建议，这些都需要商业悟性和法律知识。 

 

另一方面，广义上的“诉讼”一词，指的是在法庭开庭前的陈述索赔或者对他人观点进行反驳申辩。布维尔称之为“一场由法律授权，在正义的法庭举行，以执行权为目的竞赛。”

 

 

The Litigation Versus Transactional Laws Law Essay

 

One of the hardest things to sort out in law school is whether to choose a litigation or transactional career. [1] The question seeks an answer as graduation approaches and a choice needs to be made by the young 'legal eagle' as to which road he would want to tread upon. Upon graduation from law school, it is common to have some vague or otherwise highly focused notion, of the substantive direction one see's his career progressing. Regardless of whether it projects towards a large firm rotating between departments or at a smaller firm earmarked for a specific practice, the process of identifying the specialty pursued begins. There is real pressure to define the career as a transactional, litigation, tax, real estate or intellectual property attorney. [2] 

 

It is not uncommon to be unaware of the terminologies questioned in this paper. 'Transactional law' refers to the various substantive legal rules that influence or constrain planning, negotiating, and document drafting in connection with business transactions, as well as the "law of the deal" (i.e., the negotiated contracts) produced by the parties to those transactions. [3] Kenneth N. Klee [4] in his paper on TEACHING TRANSACTIONAL LAW [5] defines transactional law as "law focusing primarily on the parties or their professionals in the formation, negotiation, documentation, or consummation of business deals." [6] Transactional lawyers therefore must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowledge of the law. [7] #p#分页标题#e#

 

On the other hand, the word 'Litigation' in common parlance, refers to a controversy before a law court or simply put a 'lawsuit' [8] . Bouvier [9] called it "A contest, authorized by law, in a court of justice, for the purpose of enforcing a right." [10] The British Columbia Supreme Court held; "The term litigation encompasses the act of carrying on a legal proceeding. A legal proceeding connotes the resolution by a judicial tribunal of an issue between two parties." [11] Litigation lawyers are attorneys who work mainly with lawsuits and the main duty of a litigation lawyer is to take a lawsuit to court and try to win the case. Sometimes, litigation attorneys settle cases out of court, but most lawsuits they receive will be handled by them in court. [12] 

 

The author wishes to untangle the chords winding up the legal fraternity because this author has found that most attorneys fail to appreciate how important it is to decide at the earliest stages of their careers on the substantive area of law they want to pursue. [13] This involves understanding the exact nature of the work, the long term limitations, opportunities presented by a particular discipline and the environment best suited for their personal and professional development.

 

The MacCrate Report, published in 1992 by an American Bar Association recognized that in the forty years preceding the Report there had been a marked growth in demand for legal services in the business community as, "economic activity vastly expanded, new business enterprises multiplied, and the number of transactions in every segment of the economy proliferated. [14] That is, the Report illustrated the growth in the business sector of the economy which directly contributed to the increased need for lawyers skilled in business and transactional law.

 

It is out of such a backdrop that the debate was fuelled and the common option of litigation was being questioned. The familiar qualm of what career option would be superior, floated about and answers such as "whatever you want" or "whatever you're good at" or "whatever your personality traits fit, etc" [15] did not fit the bill quite well with those who sought firm substantive answers.

 

The author would substantiate his verdict, by analyzing the pros and cons associated with the nature of work in the two fields, the current standing of the two choices and the future implications of the crossed swords on the bearer.

 

法律院校的教育-Law School Education

 

For over 100 years, law schools have used the case method to teach legal theory and litigation-oriented courses. [16] For various reasons, law schools have emphasized the role of lawyers as litigators and have provided legal training accordingly. [17] Since the emphasis was clearly laid down on litigation, very little has ever been taught about the transactional aspect of law.#p#分页标题#e#

 

The casebook method is the primary method of teaching in the first year of law school. [18] The method focuses on court cases for which litigation has already occurred. The casebook method continues to be the major teaching routine beyond the first-year curriculum as well. [19] By emphasizing "cases" through the casebook teaching method, law school depicts the typical lawyer as a litigator, rather than as a transactional attorney. [20] Whether the law school subject is a litigation-related subject, such as torts or jurisprudence, or a transactional subject, such as contracts, the casebook method is the pedagogy of choice. [21] Throughout the years at law school, course offerings lean primarily toward litigation-oriented subjects. [22] 

 

Various legal luminaries have registered dismal towards the law school's stance on dispersing education. Eric J. Gouvin, Professor of Law, Western New England College School of Law believes that 'Law school, at least the way it's mostly taught, does not tell much about the way the transactional practice works'. [23] This is because of case study. Cases are always about litigation [24] and even contracts class, as usually taught, is something of a bait-and-switch.

 

Not only is the case book methodology criticized for its inclination towards the litigation face but also for many other reasons. The Clinical Legal Education Association criticizes the case method approach because; abuse of this method "contributes to the damage that the law school experience unnecessarily inflicts on many students." [25] This sort of methodology puts the onus on the student to step out of the path he has treaded upon for years at law school if he wants to go into a transactional practice. [26] A transactional practice demands a separate set of skills. The casebook method alone will not help a young lawyer identify, evaluate, and manage business risks, structure agreements, negotiate terms, and draft documents for complex financial transactions. Traditionally, young lawyers are expected to learn these challenging skills in practice -- potentially a missed opportunity for the legal academy. [27] 

 

Today, the law school's stance has moderated. The number of law schools offering contract drafting has risen markedly. [28] As have the transactional clinics and transactional externship. [29] The age old path of litigation is being questioned and transactional Law seems to be the answer to many. Law schools have attempted to respond to the call for transactional lawyers in a variety of ways; from bridging transactional law with the traditional law school curriculum; to developing stand alone "Deals" or "Business Planning" courses [30] - a number of law schools have developed innovative programs in transactional law. [31] 

 

History has shown the partiality litigation had received in the eyes of the law schools across the globe, but the time has come where transactional law has stepped on the pedal and is on a constant rise. A 2000 survey by the Young Lawyers Division of the American Bar Association supported the premise that a significant number of attorneys were engaged in transactional practice. [32] In a survey to which 850 young lawyers responded, half of the respondents indicated that the greatest percentage of their work time was spent in the areas of general corporate law, commercial law, and personal injury defence. [33] Thus, both the MacCrate Report [34] and other available statistics support the assertion that transactional practice is more than alive and well; it is equal and perhaps dominant to litigation practice.#p#分页标题#e#

 

职业发展-Career Profile

 

Before the debate proceeds, it is quintessential to understand the two fields of law and what they hold. No debate is successful without completely understanding the alternatives beforehand. [35] 

 

Litigation lawyers are attorneys who work mainly with lawsuits. The main duty of a litigation lawyer is to take a lawsuit to court and try to win the case. Sometimes, litigation attorneys settle cases out of court, but most lawsuits they receive will be handled by them in court. There are two types of litigation- Civil and criminal. A criminal litigation lawyer works on state or federal prosecution cases, while a civil litigation lawyer may specialize in one specific area or work in many areas that could include landlord-tenant, contract breaches or personal injury lawsuits. [36] All matters typically on course for law suits arising out of an adversity between two or more parties are handled by litigators. They deal with statutory, case law, regulatory research, brief and motion writing, taking depositions, declarations, requests for documents, etc. It has been defined as; performing the act of, "diligence" but of a different nature - all related to responding to requests from the other side or as a matter of fact gathering information for the case at hand.

 

The tasks involved, are diversified. Litigation attorneys often conduct an initial case investigation to determine in the plaintiff's case if enough evidence exists to file a lawsuit and in the defendant's case what evidence exists to defend a potential suit. The work involves drafting a variety of pleadings and motions on behalf of the plaintiff or defendant. Plaintiff attorneys will draft summons and a complaint to commence the lawsuit while defence attorneys collaborate with the client to investigate the allegations put forth by the lawsuit and formulate responses. Litigation attorneys also draft a variety of motions including motions to strike, dismiss, amend or change venue and motions for judgment on the pleadings.

 

At trial, in certain countries, litigation attorneys conduct voir dire [37] , select a jury [38] and present their case in court. Litigation attorneys present opening and closing statements, examine and cross-examine witnesses and craft a persuasive story for the fact-finder (judge or jury) through testimony and evidence. [39] 

 

Transactional Law, follows a different methodology and scope altogether. For a number of businesses, a working relationship with a transaction attorney is a must. [40] The On-The-Job requirements include, advising the client, implementing the business objectives of the client, safeguarding the interests of the client, limiting risk to the client, providing general and transactional business advice, negotiating business and documentation issues, and drafting relevant documents.  The transactional lawyer must focus on business issues that affect the client, bring forth relevant business developments and enunciate on previous experiences related clients subject matter at hand. [41] The Work involves understanding the client's priorities in all these respects, what the client considers non-negotiable, and the degree to which the client may concede on a particular issue as this may be a critical part of the negotiation process, particularly in terms of the overall relationship of issues and objectives in a specific matter and even in connection with a series of related or even unrelated matters. It is also an essentiality to have an expert status in the drafting, execution, and administration of such important business documents as deeds for real estate, employment contracts, merger documents, and even in the transfer of intellectual property and trademarks from one entity to another. The obligation on the transactional attorney is to ensure that the documents drafted precisely convey the intentions of the corporation and are worded in a manner that is acceptable to local customs and all provisions set forth in local law. [42] #p#分页标题#e#

 

The distinction between the two fields is stark and clear. One of the basic divisions in the practice of law is between litigation and transactional law. [43] This division or demarcation is bought out as early as in Law School since litigation tends to involve the LAW a lot more.  The number of occasions for going to the library and doing extensive research on a legal issue is far greater in litigation whereas research on an issue in the transactional side, rarely turns into a work product in the way a brief springs out of the cases [44] .

 

Most of the medium and large firms consist of at least two major departments, transactional and litigation. The practice groups in a transactional department may include merger and acquisition work, private equity, and real estate transactions while the litigation department, may include employment, securities, product liability, intellectual property, and insurance. [45] While, Litigation attorneys [46] , or litigators, deal with the judicial process, with civil disputes or criminal cases that are headed to court, [47] transactional lawyers [48] provide advice on how to structure a business and evaluate ventures and coordinate with other specialists, like tax lawyers, employee benefits lawyers and real estate attorneys (who are all transactional lawyers), to serve the sophisticated needs of their corporate clients. Transactional lawyers provide day-to-day advice to their clients, and most of their work restricts itself to law firms. [49] When compared to their counterparts, Transactional attorney's work behind the scenes, writing contracts, doing real estate closings [50] and otherwise doing such legal work that would not involve going to court. [51] They aim to help clients avoid litigation through the preparation of complete contracts and through advising on how to follow the law. However, disputes and litigation are bound to arise in business, during the course of a transactional breech, misunderstanding and disagreements. [52] For every transaction gone sour, there is a litigator who will either take someone to court or make a buck defending a lawsuit. [53] 

 

Also, Transactional attorneys most often work for companies or businesses, as most private individual clients don't require the services of transactional attorneys, ubi Litigation attorneys represent both individuals and corporate clients as private individuals may be involved in lawsuits as well. [54] The differences are aplenty, and the legal eagle needs to look deep into the career aspects of each profession before making a choice.

 

最后的战役——优点v缺点-The final Battle- Pros v Cons

 

Considering the pros and cons of an issue is a very useful way to weigh the issue thoughtfully and reach an informed decision. By weighing the pros and cons beforehand, someone can consider potential objections to a point, as well as find ways to dismiss a counter-argument. Academicians across the globe have always emphasized on the importance of Pros and Cons in problem solving. [55] #p#分页标题#e#

 

The banking of the pro's and con's of a career in litigation law against one in transactional law provides an in-depth analysis of the advantages and disadvantages one would face in pursuance of the same. Those considering a career in these fields should be aware of some of the daily routines. [56] 

 

Litigation is an incredibly structured way to live out a career. This is in terms of cases having a beginning, middle, and end in a certain repeating pattern, the docket controlling life, and the relationship as a lawyer to the rules of advocacy, whether of argumentation or procedure. On the other hand, the setting of Transactional Law is such that there is the freedom to change almost anything, by crafting a new set of rules if accompanied by the right confidence and ability. [57] This freedom could allow for a greater arena of learning. The selection is left to the legal eagle based on the mind frame he approaches the work with and the intentions he has in place.

 

Litigating provides for an opportunity to exercise well honed research and communication skills in an intellectually challenging atmosphere. The glamour quotient is indeed high but litigators face far less exciting challenges as well. Very few litigators would be actually involved in anything as sensational as the O.J Simpson trial [58] or the ground breaking Menaka Gandhi case [59] . On a daily basis, a litigator's work is more tedious than glamorous and would involve great amounts of research and drafting (and re-drafting) legal technicalities. [60] Attention to detail is essential for a good litigator but appreciation for nuance and subtlety in the interpretation of a statute can at times seem like mere technical gamesmanship. Litigators should recognize and appreciate the adverse nature of their practice as there is no guarantee that the side represented by, would be right. [61] 

 

Litigators have a significantly shorter "shelf life" in the lateral marketplace and must consider their future alternatives much earlier in their career than transactional lawyers. Unlike their corporate counterparts, senior level litigators looking to make a lateral move to a firm will experience an uncompromising preference for junior level talent and in-house or business side opportunities are not as readily available; leaving law firm partnership as one of the only realistic options for a senior litigator. [62] 

 

Litigation involves research, analyzing statutes, pouring over contracts and reading cases. The intellectual know-how gained in the field study is immense and would certainly be satisfactory for someone interested in the same. There is never a dull moment. There is research to do and memorials to write, but litigation is fast-paced and litigants are swept up by the wave. It involves intensive planning on how to beat the other side and litigants will have to use all their wits and heart and energy to see that plan through. All along, surprises and challenges and drawbacks will pop up and it can be a bit terrifying but it certainly isn't boring [63] . There is a challenge of constructing a persuasive argument and backing it up with supporting evidence and there is a personal satisfaction in being responsible for helping obtain something of value to the client.#p#分页标题#e#

 

Many leading luminaries have always believed that while advocacy is indeed attractive, they can accomplish more with a field of law that focuses on building structures rather than challenging them. Transactions have more turn-around and a shorter time frame for completion, while litigation gets dragged on for years. [64] 

 

Unlike litigation, transactional lawyers rarely do come out to the open and are hardly ever seen strutting down the long corridors of the court hall. Recognition is never on a public fore and they work in the back drop of the establishments operations. This could have an adverse effect on the minds of many as there is no appreciation for the work that they do. Also, in contrast with the litigants, transactional attorneys face quite complex and extensive rules, chiefly those concerning fiduciary obligations, misrepresentation and non-disclosure and if the transactional lawyer fails to perform loyally and competently, he must respond to the client's malpractice claims. [65] 

 

The major advantage of transactional law versus litigation however, is that it's much easier to transit out of it into business since the acquired skill set is more readily transferable to a non-legal business job, such as investment banking, private equity, and real estate development, providing a greater avenue of exposure and increasing mental security. [66] 

 

There is also a strong presumption that the large law firm attract the "best and the brightest", providing superior training and mentoring, which would transform the inexperienced into an exceptionally skilled attorney. While some may try to refute this presumption, it is indeed true that large law firms do attract the most sophisticated clients, handle cutting-edge transactions and manage the greatest deal flows. A combination of these ingredients on a consistent basis offers the greatest opportunity to develop transactional skills which are highly valued in the market. [67] 

 

The opportunities available are wide. Transactional law offers a wide range of practice niches that allow associates to develop a specialized skill set that can enhance their marketability in the future. A practice niche can be focused exclusively for specific types of transactions, such as structured financed and derivatives work, or can be slightly broader to include a range of transactions, such as banking and securities work. It is also possible to create a niche in a particular industry sector, servicing clients in industries such as new media, manufacturing, intellectual property, or entertainment. [68] 

 

A transaction attorney has a great deal of knowledge and skill that will help the client in dealing with difficult issues down the road when it comes to commercial property acquisition or business contractual deals. Many can attest that a competent transaction attorney will easily spot irregularities and thus save the client more money than the attorney's fees could ever equal. [69] #p#分页标题#e#

 

When it comes to the monetary aspect of each career option, transactional lawyers and litigators may work for the same kind of clients and earn the same kind of money. [70] However, litigation is recession-proof.  While corporate work slows down in an economic downturn, litigation doesn't.  People sue each other in good times and bad. [71] 

 

Whether this should be a deciding factor weighing on the prospective lawyer's decision is debatable. But most definitely the monetary aspect of the career needs to be held at sight.

 

结论-Conclusion

 

So, the answer is definitely not "whatever you want" or "whatever you're good at." It is important to choose a field of law much suited to your style and after adjudicating on both the fields in an unbiased manner.

 

The beauty of law lies in its ability to defy the stereotype image set by the society. There are awkward, shambling, and seemingly disorganized people who are in fact brilliant litigators and who don't fit any of the stereotypes of the typical brash litigator. There would be the typical, dapper, brash attorney, who is almost a comical caricature of the hard-driven, testosterone-fuelled litigator, who is a laughingstock and doesn't get very far in the profession because nobody can take that combative stuff seriously. There would also be the normal, friendly, average-seeming person who, despite his mild manner (that would lead to a presumption that he is better suited to transactional practice), is immensely successful as a litigator. Law practice, when viewed from up close, has a way of evading all the categories that popular culture uses to understand it.

 

There are no rules that can adequately explain success or failure in law practice.

 

The reason this author has infringed upon the area of debate is because it is critical to begin at the earliest stages, not only to appreciate the exact nature of the work involved in each area, but also to understand the range of alternatives that each substantive area of the law will offer in today's market. [72] Unqualified notions on the superiority of one field of law over the other would be injustice to the cause and this author has tried to provide substantive information pertaining to the two fields without prejudice and hopes that he has been able to grant a verdict in the CAREER SUITE!