Litigators

Need To Get A Deal Done And Protect Yourself? Hire A Litigator

Trial lawyers can provide the litigator sheen to transactional advice to help our clients avoid further disputes.

By  
on

Deal lawyers have skills and experience (which trial lawyers do not) so that they can serve their clients. But transactional lawyers generally don’t operate as if things may not work out, or see what happens when things go south. That is where we trial lawyers can provide real value to our clients with our instincts and our experience.

We don’t actually use the terms “solicitors” and “barristers” as do our British cousins in the law. But private lawyers in America are divided into camps which rarely work together (or, worse in my book, share drinks together) — transactional or deal lawyers on the one side, litigators and trial lawyers on the other.

I acknowledge that it’s a sign of my own provinciality and where I grew up, but I didn’t even realize until well after I graduated law school that “transactional lawyers” were even a thing (you don’t see them in the movies a whole lot). And it wasn’t until after my prosecution days were over that I fully understood how different deal lawyers were in terms of how they spent their time compared to those like my colleagues and I who handle disputes.

Yet, understanding that fact — that deal lawyers do a very different job than trial lawyers — helps trial lawyers see how they can serve transactional clients in a limited, if very important and special way. I am not saying we should be the ones writing the first draft of that securities offering or that 88-page partnership agreement. Indeed, I know myself well enough to know I’d rather put my head in an oven than do that: I’m simply not disciplined with that kind of work (even if, were there a litigation involving that 88-page partnerships agreement I would make sure I knew every aspect of it better than anyone else by the time I got to trial, if not well before).

Now, we can help our clients and our transactional colleagues by bringing different instincts and different experience to the table to raise concerns and reduce the risk. The transactional lawyer still runs the show, but we can bring real value by being trial lawyers in a deal.

First, we can rely on our different instincts. When the clients come to the transactional lawyer to ask for her work, the client and even the counterparty are generally singing kumbaya and excited about getting a deal done. Of course, when clients come to the trial lawyer and ask for her work, things have either fallen apart in some fashion, or they may. I don’t think this gives us necessarily a more negative instinct, nor even a better one, than transactional lawyers. We simply have different instincts: we are looking for the problems, the nuances which can go either way, the way we can shade things to help our clients.

That makes us helpfully skeptical when viewing the deal documents, or discussing something with a counterparty. “Yes,” for example, we should say to ourselves, “if everyone agrees that the pretty ambiguous contract provision means something right now, we are fine. But what if they do not agree? What if they change their minds? Let me see if I can make that provision less ambiguous.” This nitpicky, see-the-problems, and, alright, fine, negative instinct can help us bring clarity to a transaction.

Sponsored

Second, we can rely on our very different experiences in how we advise our clients. In many matters, the transactional lawyer only sees the clients at that kumbaya stage (in particular if he practices in a larger commercial firm where there is great segregation and specialization). The transactional lawyer does not see that same case when the litigator does: where partners who once professed they were blood brothers are now (so they say) ready to spend lots of their individual sweat and fortune in an out-for-blood dispute with one another.

We can reference this experience so that we have authority when we advise our clients that, yes, it looks good now, but I’ve seen this many times before. How about being careful in this way, preparing for this contingency, doing some further diligence? These are the types of things we have learned in our work that our own clients — well into a fight — wishes that they would have thought of or taken care of when they were in the kumbaya stage.

We are trial lawyers, and not transactional lawyers, for a reason (and vice versa). But we can provide what I call the litigator sheen to transactional advice to help our clients avoid further disputes. We shouldn’t worry about our own work drying up, since, as Lincoln advised when counseling his trial lawyer colleagues to avoid litigation, “There will be business enough.”

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

Sponsored

Topics

, , ,