Common interview question: transactional v litigation? Forum

[adude]

I'm honestly not sure which I'd prefer. I thought that was an OK answer until my last interview, where a senior associate told me that you should have an idea which one so that you can hit the ground running.

So I'm interested in hearing how ppl made their decisions to do transactional or litigation. Why are you interested in one or the other?

[Anonymous User]

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[PriyaRai]

This post is RIPE for an OUTTING.

[Sup Kid]

Ok, I agree w/above that this is really something you should have thought about before now, but that said, you don't really have to make a clear cut decision until beginning at a firm. Most times, SAs can try a number of different areas of practice (though normally most do work primarily in transactional or litigation). You should talk with professors, your CDO, other lawyers you know, and learn the differences between the two, and figure out what sounds more interesting to you. Pick one, then that's the answer you give at an interview (make sure you have a reason for picking that one as well). Once you get a job, and rank your areas of interest, you can try multiple areas over a summer, but to even get there you really do need to have an answer, even if no one will hold you to it. HTH.

[nygrrrl]

This? This is the shit you should've figured out before throwing ~$100-160k at the wall.

Pro tip: this board is filled with law students. YOU REALLY NEED TO FIGURE THIS OUT. FOR REAL. NOT JUST FOR THE INTERVIEWS. Go talk to some fucking lawyers. Like you should've two years ago or whenever.

Pro tip: This is not why the Anonymous feature exists. You are no longer anonymous. Also, you now have a 24 hour vacation to cool off.

[Army2Law]

This? This is the shit you should've figured out before throwing ~$100-160k at the wall.

Pro tip: this board is filled with law students. YOU REALLY NEED TO FIGURE THIS OUT. FOR REAL. NOT JUST FOR THE INTERVIEWS. Go talk to some fucking lawyers. Like you should've two years ago or whenever.

This guy is a tool, disregard his snark. Some firms let you float between practice areas during SA and even as a 1st year before you get tied down to something particular. If you can find a firm that will let you do that, that's the route I'd take for making your decision.

As far as interviews go, flexibility in what you want to do is better because it gives you a better chance of getting an offer if the firm only is looking for transactional hires and you want to do lit, or vice versa. Good luck with your job hunt and your decision!

[thesealocust]

Some firms are very rigid about this. Examples are firms that don't do transactional work (lots in DC, lit boutiques, some big firms (like Quinn) and firms that are rigid for no particular reason (Cravath).

For almost all other firms, it's probably healthy to have a well thought out initial feeling. Here are some pointers:

1) The first year of law school will teach you nothing about transactional work. Even if you take corporations as an elective, it will be case based. Every attorney you interview with knows this, use it to your advantage. You will automatically be expected to know less about transactional, but in my experience even having thought about / researched transactional was seen as a positive. Be modest about your desires. Unless you were a paralegal for a deal team or a banker or something, you will always have to qualify "I want transactional" with "based on what I've been able to find out about it."

The flip side is that you will have seen a lot of lit-related material as a 1L.

2) Transactional lawyers like to sell their practice area by describing it as constructive. Everybody can win on a deal, a client can really appreciate a deal lawyer. Litigation is almost by definition zero sum. If it's a big NYC firm, go ahead and mention that you think working on huge deals would be awesome. Odds are the attorney you works with either (a) think working on big deals is awesome or (b) knows people who think working on big deals is awesome or (c) knows people who think working on big deals should be awesome so it would be reasonable to think so without having begun work

The flip side is that if you really like the idea of there being a winner and a loser, or having more of a competitive edge, you can spin that into a desire for a litigation career.

3) Be careful about how practice areas evolve as your career does. If you want to argue motions and appeals, cool, go into lit. But at most firms you won't have a chance to do that for years, so make sure things like research and writing (a) interest you and (b) make up part of the reason you're interested in the practice area. I'm pretty sure you don't have to be interested in doing doc review, but if you know the realities of the practice area it will help. A lot of firms will try to sell you on things like how quickly associates get to take depositions or how well outsourced routine doc-review is. You can thus do well by asking questions that make you sound like you're really interested in realistic aspects of a junior associate's litigation practice: How soon do associates get to take depositions? etc.

Also, for litigation practice, keep in mind that "litigator" and "trial attorney" are somewhat distinct conceptually. Some firms specialize in getting to trial - and they tend to be very proud of that fact. Others make no secret of the fact that they litigate - often things like big securities cases - where strategy and tactics are important, but settlement (or the plaintiff giving up) starts as all but inevitable. Be careful discussing your burning desire to do a closing in front of a jury to a litigation firm, make sure to have enthusiasm for oral advocacy to a firm that prides itself on trial lawyers (hint: if the firm's logo has the words "trial lawyers" in it, that's probably a sign).

4) As mentioned above, some firms can be rigid - but many aren't. An absolute must-do piece of your pre-interview research should include, if possible, how the firm lets associates choose. Tailor your responses to their program. If the firm makes you pick after the first summer, you can say "Well, the first year of law school didn't teach me much about transactional work, so I'd love to work on a deal or two as a summer associate. But to be honest I came to law school because I wanted to litigate, so I'd anticipate that being my ultimate choice." Or something like that. You can show flexibility, research, aspects of your pre or during law school experience that shaped your interests, etc.

5) Remember how 1Ls aren't at all exposed to transactional work? Depending on the firms you interview with and the school you go to, this can open up some strategic advantages. Word on the street was that a large majority of 1Ls at my school entered interviews, even with big NYC firms with thriving corporate practices, expressing an interest for litigation. An interest in transactional could very well have set you apart in a positive way at some firms. This, as most bits of advice, can cut both ways: If you're interviewing in DC and NYC, selling a pure-transactional focus when interviewing with NYC firms who ask where else you're applying might raise eyebrows (since there are about 4 deal lawyers in DC and none of their deals are big).

6) A minor point is that firms like to push pro bono opportunities. Keep in mind that those are heavily litigation biased, and that most firms view that as great training for litigation associates who are learning the ropes and can see matters through in pro bono cases. But transactional PB does exist - for artists, non-profits, etc. So you can tailor your "I want to save the world - while billing until my fingers fall off!" responses to your practice area interests.

To get more info about the practice areas, a great starting point is this guide: http://www.chambers-associate.com/Pract ... -Summaries

Some practice areas arguably span both (bankruptcy) while others have little to do with either (some tax planning practices, regulatory/lobbying practices, etc.) though even those fit into the "litigation vs. is not litigation" spectrum.

Jeeze I'm long-winded today.

[imchuckbass58]

Above post is great. Only thing I'd add is what you're doing is very different. Broadly speaking, transactional is "planning" whereas litigation is "fighting." That is, transactional lawyers come up with legal structures, draft contracts/other documents, and negotiate the terms of deals such that such structures, terms and documents will hopefully be interpreted in a way that benefits their clients when expected or unexpected events occur in the future. Litigators fight over how the language should actually be interpreted once things go wrong.

This is, of course, an oversimplification, but I think it gets at an essential difference.

[adude]

Some firms are very rigid about this. Examples are firms that don't do transactional work (lots in DC, lit boutiques, some big firms (like Quinn) and firms that are rigid for no particular reason (Cravath) . . . Jeeze I'm long-winded today.

Wow, exceptional advice. Thanks for the great ideas. Did you go into transactional or are you interested in transactional? It seems that's the case, judging from your lengthier discussions of the pros/cons of transactional.

One practical consideration is in what type of practice an associate can bill more efficiently. I realize that, in the end, you should follow your bliss. Still, I'd prefer not to sit around with no work to do and then get destroyed by a sudden massive influx of work. Any clear distinction between transactional and lit in this regard?

[imchuckbass58]

One practical consideration is in what type of practice an associate can bill more efficiently. I realize that, in the end, you should follow your bliss. Still, I'd prefer not to sit around with no work to do and then get destroyed by a sudden massive influx of work. Any clear distinction between transactional and lit in this regard?

Varies, but generally:
-Transactional is more unpredictable than litigation. In litigation you are aiming for filing deadlines so you know when your heavy periods are going to be. With transactional you could get a deal dropped on you on Friday that they want to close before the market opens on Monday.
-As far as I can tell no clear difference in billing efficiency between transactional and lit. If you're on doc review, you will bill a high proportion of your hours, but same thing with transactional due diligence.

[A'nold]

That annoying guy was really dumb. I would say that most are not doing what they planned on doing by the time they leave ls.

[Anonymous User]

I'll definitely agree with everything the above poster said.

Here are a couple additional practical considerations for going one way or the other (since I am leaning transactional, so are my reasons):

- If you want to go in house, go transactional. While in-house lit groups exist, it's much easier to go in house if you're transactional. This was a major factor for me because I wanted to have a good, well-paying non-firm, non-government option open after 3-5 years at a firm. Obviously, I did not answer the lit/transactional question this way in interviews, though.

- If your legal writing grade is low, you might want to consider transactional. You still write a lot in transactional, but it's much less like LRW, so your LRW grade is less likely to hurt you. At least two hiring partners have confirmed to me that if you say you want lit but have a low LRW grade or a bad writing sample, your chances of a call back are much lower.

At the same time, if you do have a good LRW grade, you can spin this too since transactional will involve lots of writing. I had no idea that this was true when I came to law school (I thought transactional was all negotiating), but when I started talking to real attorneys and realized that writing, although different, was still important, I used my good LRW grade to say that I was good at conforming my writing to all different styles and contexts.

I'll also second what the above poster said about interviewers looking favorably upon students who were leaning transactional, since the vast majority of 2Ls at OCI said they wanted litigation because it's what they were most familiar with.

[adude]

Varies, but generally:
-Transactional is more unpredictable than litigation. In litigation you are aiming for filing deadlines so you know when your heavy periods are going to be. With transactional you could get a deal dropped on you on Friday that they want to close before the market opens on Monday.
-As far as I can tell no clear difference in billing efficiency between transactional and lit. If you're on doc review, you will bill a high proportion of your hours, but same thing with transactional due diligence.

Gotcha. It seems that transactional billing would be less efficient if work is unpredictable - without an ability to plan ahead, you will waste time sitting around, waiting for the deal. In other words, you would think that the difference between billable and non-billable hours would be greater in transactional.

Another consideration is the fact that transactional would be more volatile - in a bad economy, deals would stop. Litigation would continue unaffected, however.

[BackToTheOldHouse]

Above post is great. Only thing I'd add is what you're doing is very different. Broadly speaking, transactional is "planning" whereas litigation is "fighting." That is, transactional lawyers come up with legal structures, draft contracts/other documents, and negotiate the terms of deals such that such structures, terms and documents will hopefully be interpreted in a way that benefits their clients when expected or unexpected events occur in the future. Litigators fight over how the language should actually be interpreted once things go wrong.

This is, of course, an oversimplification, but I think it gets at an essential difference.

Very cool, even if an oversimplification. Has helped me understand this distinction much better.

[DoubleChecks]

Some firms are very rigid about this. Examples are firms that don't do transactional work (lots in DC, lit boutiques, some big firms (like Quinn) and firms that are rigid for no particular reason (Cravath).

For almost all other firms, it's probably healthy to have a well thought out initial feeling. Here are some pointers:

1) The first year of law school will teach you nothing about transactional work. Even if you take corporations as an elective, it will be case based. Every attorney you interview with knows this, use it to your advantage. You will automatically be expected to know less about transactional, but in my experience even having thought about / researched transactional was seen as a positive. Be modest about your desires. Unless you were a paralegal for a deal team or a banker or something, you will always have to qualify "I want transactional" with "based on what I've been able to find out about it."

The flip side is that you will have seen a lot of lit-related material as a 1L.

2) Transactional lawyers like to sell their practice area by describing it as constructive. Everybody can win on a deal, a client can really appreciate a deal lawyer. Litigation is almost by definition zero sum. If it's a big NYC firm, go ahead and mention that you think working on huge deals would be awesome. Odds are the attorney you works with either (a) think working on big deals is awesome or (b) knows people who think working on big deals is awesome or (c) knows people who think working on big deals should be awesome so it would be reasonable to think so without having begun work

The flip side is that if you really like the idea of there being a winner and a loser, or having more of a competitive edge, you can spin that into a desire for a litigation career.

3) Be careful about how practice areas evolve as your career does. If you want to argue motions and appeals, cool, go into lit. But at most firms you won't have a chance to do that for years, so make sure things like research and writing (a) interest you and (b) make up part of the reason you're interested in the practice area. I'm pretty sure you don't have to be interested in doing doc review, but if you know the realities of the practice area it will help. A lot of firms will try to sell you on things like how quickly associates get to take depositions or how well outsourced routine doc-review is. You can thus do well by asking questions that make you sound like you're really interested in realistic aspects of a junior associate's litigation practice: How soon do associates get to take depositions? etc.

Also, for litigation practice, keep in mind that "litigator" and "trial attorney" are somewhat distinct conceptually. Some firms specialize in getting to trial - and they tend to be very proud of that fact. Others make no secret of the fact that they litigate - often things like big securities cases - where strategy and tactics are important, but settlement (or the plaintiff giving up) starts as all but inevitable. Be careful discussing your burning desire to do a closing in front of a jury to a litigation firm, make sure to have enthusiasm for oral advocacy to a firm that prides itself on trial lawyers (hint: if the firm's logo has the words "trial lawyers" in it, that's probably a sign).

4) As mentioned above, some firms can be rigid - but many aren't. An absolute must-do piece of your pre-interview research should include, if possible, how the firm lets associates choose. Tailor your responses to their program. If the firm makes you pick after the first summer, you can say "Well, the first year of law school didn't teach me much about transactional work, so I'd love to work on a deal or two as a summer associate. But to be honest I came to law school because I wanted to litigate, so I'd anticipate that being my ultimate choice." Or something like that. You can show flexibility, research, aspects of your pre or during law school experience that shaped your interests, etc.

5) Remember how 1Ls aren't at all exposed to transactional work? Depending on the firms you interview with and the school you go to, this can open up some strategic advantages. Word on the street was that a large majority of 1Ls at my school entered interviews, even with big NYC firms with thriving corporate practices, expressing an interest for litigation. An interest in transactional could very well have set you apart in a positive way at some firms. This, as most bits of advice, can cut both ways: If you're interviewing in DC and NYC, selling a pure-transactional focus when interviewing with NYC firms who ask where else you're applying might raise eyebrows (since there are about 4 deal lawyers in DC and none of their deals are big).

6) A minor point is that firms like to push pro bono opportunities. Keep in mind that those are heavily litigation biased, and that most firms view that as great training for litigation associates who are learning the ropes and can see matters through in pro bono cases. But transactional PB does exist - for artists, non-profits, etc. So you can tailor your "I want to save the world - while billing until my fingers fall off!" responses to your practice area interests.

To get more info about the practice areas, a great starting point is this guide: http://www.chambers-associate.com/Pract ... -Summaries

Some practice areas arguably span both (bankruptcy) while others have little to do with either (some tax planning practices, regulatory/lobbying practices, etc.) though even those fit into the "litigation vs. is not litigation" spectrum.

Jeeze I'm long-winded today.

amazing post. bookmarking this thread just because of it helpful advice and definitely the way id go about it too.

only thing id add is that haha, many transactional lawyers have told me that ALL of law school does not prepare you for transactional work, not just 1L year

[thesealocust]

only thing id add is that haha, many transactional lawyers have told me that ALL of law school does not prepare you for transactional work, not just 1L year

Eh, we have a few 1 credit courses taught by practicing transactional attorneys

Wow, exceptional advice. Thanks for the great ideas. Did you go into transactional or are you interested in transactional? It seems that's the case, judging from your lengthier discussions of the pros/cons of transactional.

One practical consideration is in what type of practice an associate can bill more efficiently. I realize that, in the end, you should follow your bliss. Still, I'd prefer not to sit around with no work to do and then get destroyed by a sudden massive influx of work. Any clear distinction between transactional and lit in this regard?

Glad it was helpful. I am indeed planning on going into transactional.

I wouldn't worry about billing inefficiency for the sake of billing. I have been led to believe that transactional's volatility makes planning harder, however. Others have mentioned it, but I believe big firm deal work is often fire drill / emergency / as fast as possible get it done yesterday work.

That doesn't mean the transactional attorneys sit on their ass all day waiting for the bat signal though. All attorneys at big firms are going to be working (and billing) crazy hours day in and day out. The litigators will just have a better sense of win their busy times will be, since shit like depositions and filing dates has to be planned pretty far in advance.

- If you want to go in house, go transactional. While in-house lit groups exist, it's much easier to go in house if you're transactional. This was a major factor for me because I wanted to have a good, well-paying non-firm, non-government option open after 3-5 years at a firm. Obviously, I did not answer the lit/transactional question this way in interviews, though.

This matches what I have heard. The data support that the majority of in-house counsel attorneys are former transactional attorneys, and logic backs that up. A more common exit option for litigators seems to be smaller litigation firms. Though obviously both types of attorneys can and do lateral to different firms. I'm not sure how much of it is selection bias vs. actually ability though. Litigators wind up with in-house counsel positions, that much is sure - but my guess is the kind of work and client contact done on deals makes it that much more likely to get a direct offer.

[2LLLL]

While the common consensus seems to be to express flexibility, my experience has been that you are better off being unequivocal and having a choice in mind, together with a reasonable explanation for that choice.

I think that you're better off choosing one and explaining your preference, but then throwing in at the end of your answer something like "...but I'm interested in gaining more exposure to [corporate/litigation] this summer. Does your firm allow SAs to try a variety of areas?" (obviously don't add the question if you know that the firm's policy is to not allow a rotation).

And, if you interview with a corporate attorney, definitely drop the "law school only teaches lit" line, even if you're going to tell him that you want to do lit.

[Anonymous User]

Some firms are very rigid about this. Examples are firms that don't do transactional work (lots in DC, lit boutiques, some big firms (like Quinn) and firms that are rigid for no particular reason (Cravath).

Anonymous because I summered at Cravath a few years back.

I didn't read your whole post, so forgive me on that, but Cravath is not rigid about making you choose. They allow summers to split between two of lit/corp/tax/t&e/exec comp (or at least they did, and I haven't heard that it changed)--many in my summer class did do a split. In my callback, I interviewed with corp and lit partners because I had indicated that I wasn't sure.

I'll read the rest of your post now and maybe I'll have something else to say, but I just wanted to respond to that one remark you made because I found it odd.

[DeSimone]

Awesome advice. Bookmarking.

[keg411]

Thanks as always, thesealocust . As someone who would prefer transactional to lit, this is really helpful.

[ZXCVBNM]

Some firms are very rigid about this. Examples are firms that don't do transactional work (lots in DC, lit boutiques, some big firms (like Quinn) and firms that are rigid for no particular reason (Cravath).

Anonymous because I summered at Cravath a few years back.

I didn't read your whole post, so forgive me on that, but Cravath is not rigid about making you choose. They allow summers to split between two of lit/corp/tax/t&e/exec comp (or at least they did, and I haven't heard that it changed)--many in my summer class did do a split. In my callback, I interviewed with corp and lit partners because I had indicated that I wasn't sure.

I'll read the rest of your post now and maybe I'll have something else to say, but I just wanted to respond to that one remark you made because I found it odd.

you can't split at cravath anymore

[Anonymous User]

So, this will influence the bidding that we all bid for. Can lawyers comment what the day to day life differences are for these 2 types of practices, or any other types of practices in big law one won't hurt their interview chances by expressing interest in?

[Anonymous User]

sea -- what about after you've already secured the SA?

The firm I am SAing at does both lit work and business work (a lot of real estate, energy stuff, etc.). The firm brought me in and really talked up the lit side (their lit side is about 1/3 of what the firm does and the rest is business and energy work). I know that they think I am a lit person, but I think I want to go into the business/energy side of the firm.

Any negatives with this? I figure I can just wait until I get a full time offer before I say that since you choose your practice area post-offer. Just don't know if that would piss some people off or not.

[AllDangle]

Tag

[thesealocust]

sea -- what about after you've already secured the SA?

The firm I am SAing at does both lit work and business work (a lot of real estate, energy stuff, etc.). The firm brought me in and really talked up the lit side (their lit side is about 1/3 of what the firm does and the rest is business and energy work). I know that they think I am a lit person, but I think I want to go into the business/energy side of the firm.

Any negatives with this? I figure I can just wait until I get a full time offer before I say that since you choose your practice area post-offer. Just don't know if that would piss some people off or not.

Firms are rarely monolothic, but instead many discrete islands of partners and practice groups. There's absolutely no way to know.

The bigger the firm, the better your odds - but general economic conditions probably matter more.

Never underestimate how fungible you are as a junior though - and all the positives and negatives that come with that fact.