Many people understand that lawyers usually choose to exclusively handle either transactional matters or litigation. Although there are some attorneys who work on both litigation and transactional matters, most attorneys focus on only one of these areas of law. Since attorney are usually experienced in only one part of the legal arena, lawyers might be hesitant to handle a lawsuit or transactional issue if they rarely work in this field.
As a litigator, I have encountered many transactional attorneys who are very scared of going to court. To them, litigation is an extremely foreign process, and they are afraid of blowing a deadline or not following the correct procedure when litigating a case. Sometimes, when I tell transactional attorneys that I am a litigator, they’ll regale me about a time when they were forced to go to court, and convey the harrowing experience they had litigating a matter.
Of course, I don’t mind if transactional attorneys want to keep far away from litigation. Indeed, this is the main source of referrals to my law firm! However, most transactional attorneys do not need to fear litigating matters for a variety of reasons.
Some transactional attorneys dread going to court because they are afraid of missing deadlines or not following the correct procedures. However, deadlines are oftentimes explicitly spelled out in court orders, so everyone is usually on the same page about when tasks must be completed. Also, especially in state court, discovery deadlines are pretty flexible, so even if you did not meet a deadline, it is not usually a big deal (with some major exceptions). In addition, if you assign the wrong return date on a motion, or make some other minor error, courts will usually just adjourn a motion to the right date or administratively correct an issue.
Of course, this flexibility is not a license to commit malpractice, and statutes of limitations, summary judgment deadlines, and other dates must be followed. However, litigation is a much more flexible process than many transactional attorneys might think, and as a result, transactional attorneys should not be afraid of going to court.
In addition, many transactional attorneys are scared to litigate cases because they no longer feel confident in their abilities to conduct legal research. I know a few lease attorneys and other lawyers who have not conducted legal research since graduating from law school, and they do not think they will be able to competently research issues related to litigation. As such, these attorneys don’t think they can write briefs or argue matters in court as effectively as trained litigators.
However, legal research is actually really easy to complete. When I was in law school, we learned how to do book research (although this was a complete waste of time) and we had to use terms and connectors when accessing Westlaw and Lexis. Now, conducting legal research on these and other platforms is as simple as using Google, and it is extremely easy to find authority on a given point of law. Plus, these platforms and other sources publish practice guides that make it easy to litigate a variety of different matters.
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I also know many transactional attorneys who have told me that they no longer know how to use a Bluebook to properly cite authorities, and they would feel embarrassed filing a brief with citation errors. But it is easy enough to look up how a given authority should be cited, especially since in the real world of litigation, you typically just cite to cases, statutes, and a few other authorities. Also, only law professors and stuck-up partners really focus on whether an authority is cited property, or an abbreviation is used correctly. So long as you make a decent attempt at citing an authority, you’ll pass muster in court. Indeed, I have seen court opinions with tons of citation errors, and in the real world, people don’t care so much if citations are done perfectly.
Still other transactional attorneys have told me that they are scared to litigate matters since pleadings, motion papers, and other litigation documents are completely foreign to them. I totally understand how it might be daunting to try and litigate matters if you do not have any examples upon which you can rely when drafting documents for a case. However, almost every state court has an online electronic filing system, and PACER makes it easy to obtain documents related to federal cases. As a result, it is usually pretty easy to find a matter similar to the one you are litigating and research documents that can be used as examples when drafting many types of legal papers. Therefore, numerous transactional attorneys do not need to feel like they lack the resources to effectively litigate matters.
Of course, some people choose to focus exclusively on transactional matters, and sometimes it is just easier to refer litigation to attorneys that have more experience with this area of the law. However, transactional attorney do not need to be afraid to go to court or handle litigation matters. Litigation is oftentimes more flexible than most people might think, and many resources are available to make the litigation process extremely easy for most lawyers.
Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].