The Litigation Versus Transactional Laws Law Essay

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One of the hardest things to sort out in law school is whether to choose a litigation or transactional career. [1] The question seeks an answer as graduation approaches and a choice needs to be made by the young ‘legal eagle’ as to which road he would want to tread upon. Upon graduation from law school, it is common to have some vague or otherwise highly focused notion, of the substantive direction one see’s his career progressing. Regardless of whether it projects towards a large firm rotating between departments or at a smaller firm earmarked for a specific practice, the process of identifying the specialty pursued begins.

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There is real pressure to define the career as a transactional, litigation, tax, real estate or intellectual property attorney. [2] It is not uncommon to be unaware of the terminologies questioned in this paper. ‘Transactional law’ refers to the various substantive legal rules that influence or constrain planning, negotiating, and document drafting in connection with business transactions, as well as the “law of the deal” (i.e., the negotiated contracts) produced by the parties to those transactions. [3] Kenneth N. Klee [4] in his paper on TEACHING TRANSACTIONAL LAW [5] defines transactional law as “law focusing primarily on the parties or their professionals in the formation, negotiation, documentation, or consummation of business deals.” [6] Transactional lawyers therefore must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowledge of the law. [7] On the other hand, the word ‘Litigation’ in common parlance, refers to a controversy before a law court or simply put a ‘lawsuit’ [8] . Bouvier [9] called it “A contest, authorized by law, in a court of justice, for the purpose of enforcing a right.” [10] The British Columbia Supreme Court held; “The term litigation encompasses the act of carrying on a legal proceeding. A legal proceeding connotes the resolution by a judicial tribunal of an issue between two parties.” [11] Litigation lawyers are attorneys who work mainly with lawsuits and the main duty of a litigation lawyer is to take a lawsuit to court and try to win the case. Sometimes, litigation attorneys settle cases out of court, but most lawsuits they receive will be handled by them in court. [12] The author wishes to untangle the chords winding up the legal fraternity because this author has found that most attorneys fail to appreciate how important it is to decide at the earliest stages of their careers on the substantive area of law they want to pursue. [13] This involves understanding the exact nature of the work, the long term limitations, opportunities presented by a particular discipline and the environment best suited for their personal and professional development.

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