Transactional After Clerkship Forum

[Anonymous User]

OP here. Largely second what this guy said. Additionally, I would say I largely disagree with this idea that the adversarial process and fighting over things gets you to some objective truth or is productive, which many litgators accept as unquestionable.

I actually like litigation but I also think this is weird. That quote about how the adversarial process is "the greatest engine yet discovered for the discovery of truth" or whatever has never made sense to me. Litigators' job is to fight for their client using procedural and legalistic tools even when that means trying to obscure the actual truth (and you can 100% do this without breaking the rules or lying to the court).

Imagine if scientific questions got resolved by assigning one scientist to one side of a debate, another to another, and finding the answer based on whoever wins the debate according to whatever the rules are. And then, if like geocentrism happened to win because it had better advocates, and then you missed the deadline to appeal, that ruling was just enshrined forever.

If the adversarial system makes sense, and I do think there are good reasons for it, it has to be about protecting individual rights and a person's ability to advocate for themselves on issues that affect them, and limiting the power of whatever centralized government Board of Truth would be set up to resolve disputes. It can't be that litigation-style arguing actually is the best and most productive way possible of finding out what actually happened.

Sorry for the rant, anyway, a platinum-plated resume like yours shouldn't have any problem getting into general corp.

FWIW, I've been in litigation my whole career and have never once heard a real-life litigator say that litigation is the best way to reach the objective truth. In fact, probably the opposite - when I was working as a prosecutor, law enforcement folks would at times get visibly annoyed with things admissibility requirements or what felt like nitpicky elements, and I'd frequently explain that while they knew def X had done [whatever], and I knew def X had done [whatever] the issue wasn't what we knew, but what we could prove in court under the rules we had to follow. That's never going to be the objective truth given how much information can't be used at trial.

The adversarial process is, I think, pretty decent at allowing each side to attack the others' argument, with a set of rules that everyone has to play by, which can (though not always) level the playing field (although not always lower the barrier to entry). It's good at figuring out which side has the objectively most successful argument under the rules we use, which are based to a certain extent on fair play and so on, but certainly aren't infallible at testing the truth. There are also whole bunch of policy reasons for things like timeliness/limiting appeal etc., which are usually sensible in a practical sense (parties' interest in finality, not overwhelming the court system, that kind of thing). But none of those things have much to do with finding the objective truth.

Re clerking, of course you're not going to know the right outcome after reading the parties' briefs (unless you already know all the law behind the issue). You can't know that till you check for yourself.

[The Lsat Airbender]

I also believe in "Truth with a capital 'T'" . . . I realized a vast majority of my classmates were moral relativists. They enjoyed competing for the sake of competing. It's a game to them, a fierce and exciting game.

But it's the same thing in transactional work, right? I'm trying to get the best possible terms for my client, part of the game is "winning" the negotiation. And while I personally have a view as to what the "correct" or "truly fair" allocation of risks and responsibilities is in a deal, I'm going to try to do better than that for my client. I enjoy that!

It's a different sort of competition. Transactional law involves a lot of "win-win"s; negotiation can create value by divvying up the economics/risk in creative ways. That doesn't mean it's all peachy kumbayah times, but you're much less often trying to malign the counterparty, exploit OC's mistakes, etc.