Is Your Lawyer a “Litigator”?
In theory, a lawyer fresh out of law school can handle any type of case. But in reality, every lawyer eventually decides on an area of practice involving one of two broad areas: litigation or transactional law.
The “Litigator”
Litigation attorneys handle disputes that go to court or resolution the mediation or arbitration. This is the “litigator.” This job requires not only a certain personality, but also a tolerance for deadlines, difficult witnesses and/or or opposing counsel, mixed with a craving to learn ever changing courtroom procedures at the local, state, and federal levels. For example, COVID rapidly changed how cases went to court and is still having an effect on the system years later. Plus, the successful litigator has to be able to “turn off” the aggression and display charm, warmth and deeply felt empathy for others.
But why? Two reasons.
a. “Catch More Flies with Honey Than Vinegar.”
First, the lawyer needs to disarm witnesses (both his own and the opposing party’s witnesses) to get the evidence needed to win. Nervous witnesses “clam-up.”
b. Forget Stereotypes
While many think a litigator “likes to fight,” it’s a stereotype. Ninety-five (95) percent of cases handled by litigators settle short of trial. And, among the cases actually tried, the lawyers reach agreements (without fighting) on dozens of issues for every one that’s actually fought.
For example, in a breach of contract case, the lawyers might ask the jury to decide whether the breach was a “material breach” or a “minor” one and the amount of damages resulted, if any. That said, the parties in that case may agree that a contract existed.
In fact, it’s common for the parties to stipulate to the admissibly of all the electronic dealings between the parties that created the contract, including text messages, What’sAP communications, and social media direct messages, even though each messages could be objectionable as hearsay.
But why not always “fight the good fight”?
It comes down to job security, for the lawyer. Efficiency is everything. Clients with deep pockets — think Microsoft, Tesla, Amazon, or General Motors — know one thing: a case requiring a week-long trial shouldn’t take three weeks. But that’s what happens if the lawyer fights over the admissibility of every text message. The lawyers knowing how to boil down a case to the key issues — and who can work with the opposing party on most issues — will remain sought after by the client following the trial: win, lose or draw.
Suffice to say, not every lawyer makes for a good litigator.
Transactional Law
This area of law is quite different from litigation.
Transactional law mainly involves protecting a client’s rights outside of litigation and advising clients how to avoid litigation. A lawyer practicing “transaction law” can do many things: draft contracts (short of litigation), simple estate planning (will drafting or trust creation), powers of attorney, or business incorporation to protect personal liability from business debt.
A transactional lawyer’s lifestyle is different from a litigator. For instance, the transaction attorney tends to work 8 to 5 (or 6) — but not on weekends, typically. Many transactional lawyers occupy cushy “in house counsel” jobs for a small or mid-sized company. A litigator, on the other hand, has no fixed schedule, except what the courts or clients require. For example, he may work all night, if handed a short deadline by a judge for a case on the trial list. Or, the litigator may need to travel to another state to record the deposition of a witness who refuses to appear at court for trial in the coming weeks.
The transactional lawyer, on the other hand, rarely goes to court. Nor does she typically attend a deposition. She may have never spoken to a jury or have ever seen a verdict slip. Thus, you would not want a transactional-type lawyer to try your case in court before a judge or jury, unless the lawyer had been a litigator previously.
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