Wednesday, June 04, 2008

A Good Point About The Relationship Between Litigation Experience and Transactional Law

If you have not read David Mowry’s piece in the June “Change is Good” I commend it to you. David describes his change from outside litigation lawyer to inside transactional lawyer. He makes a good point about how much his litigation experience has contributed to his new role as a transactional lawyer because he approaches it with a “seer’s perspective.”

Don’t get me wrong transactional lawyers are nice people, I even did acquisitions and divestures, but I try not to publicize it too much. The problem is that transactional lawyers sometimes tend to become mesmerized by their language skills. They describe a concept, or sometimes just string together a rather impressive collection of words with out any real sense as to how those words will be implemented in a litigation context.

I have had the opportunity to try contract cases involving large commercial agreements that were drafted by law firms of substantial reputation. They were even bound. Notwithstanding the imposing appearance of these documents one is amazed at the level of ambiguity that can exist that I am sure was not apparent to its drafters, but might be to someone like David who is accustomed to looking at these agreements in their least flattering light.

David’s perspective might well distinguish between three alternative ways of addressing an issue because his knowledge on civil procedure can reveal one to have the most cost effective manner of developing facts and getting them into evidence to support a claim than the other two alternatives.

Great point David—good luck in your new career. By the way I was close friends with former Xerox, General Counsel and ACC founder, Bob Banks, who had lawyers who worked for him that argued Xerox cases before the US Supreme Court—there is history there at Xerox that may get you back in court for your employer some day!

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