In a prior post, I criticized law schools’ heavy reliance on the case-method as a way to prepare lawyers for practice. As I argued in that post, the case method, which primarily teaches students the law through an analysis of the legal reasoning in appellate cases while ignoring most of the factual context for those cases, leads law students to think more like judges and judicial clerks than practicing lawyers.
Still, being able to think like a judge is helpful to some degree to a litigator, for it enables her to place herself in the shoes of her potential audience — the judge – to identify her strongest (and weakest) arguments. Moreover, learning the law through the case method, even absent much of the factual context giving rise to the case, gives students some exposure to what a lawsuit is, who the different parties to a lawsuit are, and how to read and understand the procedural posture of a case. It also helps students to develop legal reasoning skills in the context of a legal problem arising due to existing facts and circumstances. The procedural and evidentiary aspects of litigation are further explored and reinforced through courses on civil procedure and evidence, which are mandatory at many law schools.
But thinking like a judge is nearly irrelevant to a transactional attorney.
A transactional attorney should never see the inside of a courtroom, either trial or appellate. In fact, if she has done her job well, a transactional attorney can prevent many legal “problems” from arising in the first place. (That being said, sometimes a client who is advised that a contract provision may lead to litigation is willing to accept that risk, and sometimes a risk comes to pass that was simply not foreseeable.)
While litigators focus on events that have occurred, transactional attorneys must generally consider what might occur. More generally, a transactional attorney helps her clients order their business affairs in light of unknown future risks. To do this, a transactional attorney must first understand her client’s objectives in a transaction. She must then help her client to achieve those business objectives in compliance with the law. Often this involves foreseeing likely changes in circumstances that might impair or prevent her client from achieving its business objectives, and advising her client how to structure the transaction to minimize or avoid possible adverse consequences from those changes.
Law school casebooks almost never contemplate the transactional context in which the law may be applied. Even the hypothetical variations of cases presented in most casebooks teach students how to apply the legal principles they have learned from a case to a new legal problem with slightly varied facts. Very rarely do they present a hypothetical transaction and ask the student to advise her client how to achieve the client’s business objectives in light of the legal principles she has learned from cases (and statutes) she has read.
I concede that the law is not developed in the context of transactions because transactions are effectively private arrangements between parties. But one of the primary goals of the case method is to teach students how to apply the law in a new factual context. By failing to teach students how to apply legal principles in a transactional context, I fear we are insufficiently preparing them to be transactional lawyers. We also are failing to teach students the standards of professionalism applicable to transactional attorneys throughout the relevant parts of the curriculum.
As in my prior post on the case method, I do not propose here how to change law school doctrinal courses so that they better prepare transactional attorneys for practice. In my view, the development of recommendations should only follow a dialogue about how, conceptually, we can improve the academic enterprise for the benefit of our students and the legal profession.
Nadelle, I am really enjoying your posts on this subject.
As you probably know, related issues arise in the legal writing curriculum. Beyond the practical question of how best to teach writing for the transactional context (good resources here: http://lawprofessors.typepad.com/legalwriting/2009/10/a-gold-mine-for-teaching-legal-drafting-and-transactional-skills.html) there has been some discussion of whether the first-year required writing curriculum should be changed to include drafting or other types of writing more common in non-litigation practice (e.g., http://papers.ssrn.com/sol3/papers.cfm?abstract_id=937390).
What struck me in your post was what you said about the perspective of transactional lawyers (in contrast with litigators): “foreseeing likely changes in circumstances that might impair or prevent her client from achieving its business objectives.” But doesn’t that go beyond a skill for transactional lawyers, to good lawyering in general? I think that the best litigators have a good grasp of both of those perspectives, i.e., the way that the current legal situation is limited by what’s already happened, and the ways that future actions will shape the client’s ability to have the result he or she wants. Lawyers better serve their clients when they understand their needs more globally, rather than focusing only on whatever particular legal issue is going on at the moment.
Jessica,
Thanks for your comment. I agree that a good lawyer must always think about the future consequences of the current situation. That’s also true for the skill of legal reasoning — both litigators and transactional attorneys should have that skill. But in my view, the application of these skills differs in the litigation and transactional contexts. In fact it differs in significant enough ways that I don’t think students can be expected to know how to adapt these skills from one context to the other without education and practice.
More specifically to your point, a good litigator should look to the future to ensure nothing will occur that impairs the client’s realization of the benefits from the resolution of a current problem. But the inquiry stems from a problem that has been resolved in present time, and in that way seems to be a focused inquiry. Moreover, the focus seems to be on protecting the client’s legal rights.
In contrast, a transactional attorney must consider the client’s business and business objectives more broadly, and help her client not solely protect its legal rights, but to also further the client’s business and business goals. It is the pervasiveness of business (which effectively is the pursuit of profits in light of risk) that in my view distinguishes a transactional (business) lawyer from litigators.
Thanks again for taking the time to read and respond to my post.
Oh, of course I absolutely agree with all of that! I guess your post just made me think about how we could do a better job of exposing all of our students to the different types of skills and perspectives that they may need to use in whichever particular legal context they end up working in.
It seems odd, but the idea that the primary purpose law school is to prepare students so that they can go immediately into practice is of relatively recent vintage. Historically law schools (including Marquette until 1933) focused on preparing students for the bar examination and to a lesser extent, on training them to think like lawyers. Responsibility for actually teaching new lawyers how to practice was informally dedicated to law firms, to the bar generally, and to the clerks and other court officials.
To me the interesting questions are why the bar has chosen to throw this responsibility back to the law schools and why the law schools have been willing to accept it.
Professor Grossman,
Re your statement “Very rarely do [law school casebooks] present a hypothetical transaction and ask the student to advise her client how to achieve the client’s business objectives in light of the legal principles she has learned from cases (and statutes) she has read”:
While not a casebook class, my Advanced Legal Research class last fall, I am happy to report, did just what you wished law schools would do more. Half of the final research project was a client letter, advising the optimal business association to form to advance the client’s personal and professional goals. The project required that we understand statutes and cases to anticipate and minimize litigation (and the concomitant transaction costs). This project was a welcome break from the typical issue-spotting law school exam or trial/appellate brief focused on marshalling favorable facts and law to resolve a dispute/put out fires. I would not be surprised if my peers have had similar experiences, and I laud the faculty who include transactional projects like client letters in their courses.