Deal Lawyers and Litigators—Two Cultures?

I just read “The Billable Hour Must Die,” an article by Scott Turow in the August 2007 issue of the ABA Journal. The following paragraph caught my eye:

The people writing contracts were, in my youthful view, not much different from consultants. Although I have learned to love and appreciate hundreds of transactional lawyers in the years since, I notice, in looking over my novels, that I have not yet had a hero who is any other kind of a lawyer but a litigator. My protagonists have been prosecutors, criminal defense lawyers, a judge, a tort lawyer, a commercial litigator—even journalists. But no deal guys or gals. In the restricted zone of my imagination, it’s the litigators who are the real thing.

Two thoughts come to mind. First, Turow’s choice of protagonists should come as no surprise, because dealmaking, or rather the lawyer’s role in dealmaking, obviously isn’t the stuff of gripping drama. Whenever a corporate lawyer features in popular entertainment—the protagonist of John Grisham’s The Firm and the Alan Rachins character in L.A. Law come to mind, although my recollection is dim—what their work consists of is dealt with fleetingly.

Conflict and crisis make for better entertainment, so it comes as no surprise that shows dealing with crime, litigation, and medicine seem to account for three-quarters of prime-time TV dramas. (Mind you, I’m sure that plenty of big-firm litigation associates ruefully note on a regular basis the lack of drama in their endless motion practice.)

But this passage from Turow’s article also reminded me of my own casual reflections on the ethos of the litigator versus that of the deal lawyer.

I’ve always thought that junior lawyers shouldn’t have much call to wrestle over whether to be a litigator or a corporate lawyer. While I could write research memos with the best of them, it never crossed my mind to be a litigator. And the “restricted zone” of Turow’s imagination would seem to have precluded him from every imagining being a deal lawyer.

This gulf would seem to be due to the drastically different approaches that the two disciplines require. I think of litigators as being fighters and deal lawyers as being builders. That isn’t to suggest that all litigators are shiv-wielding barroom brawlers and all deal lawyers are placid seekers of consensus. The best litigators know that some battles aren’t worth fighting, and they’re skilled at bringing them to a close. And I’ve known forceful, even intimidating, deal lawyers. But I think the dichotomy nevertheless holds true.

It would of course be futile to attempt value judgments—one can fight, or build, for all sorts of worthy and less worthy ends.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.