Robbins: Lawyers come in two types
No, not good or bad, friendly or unfriendly, or some other casual metric.
What I am referring to is the two major distinctions of lawyers’ practices.
What might surprise many people — particularly after a steady diet of John Grisham novels, movies, and TV series — is that most lawyers, the vast majority, in fact, have never seen the inside of a courtroom. OK, they may have seen one, from time to time — after all, lawyers get called for jury duty too — but that’s not where the bulk of attorneys ply their quotidian trade.
Say what?
That’s right. Despite what Hollywood, Grisham, “To Kill a Mockingbird,” and what others may have led you to believe, lawyers who click their heels and strut in a courtroom are only the tip of the legal iceberg. A recent reckoning suggests that only about one-quarter of practicing attorneys devote any part of their practice to trial work. But that’s only part of it which I’ll come back to in a sec.
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So, your perceptions shattered, if lawyers aren’t out there cracking heads in a courtroom, what then are they doing?
Well … paper shuffling mostly.
But that’s unkind, particularly as I do a whole lot of paper shuffling myself. This brings us back to the title of this column: What types of lawyers are there?
Generally, they fall into two broad types: litigation attorneys and transactional attorneys.
When I was a young attorney — as green as a new spring bud — the law firm to which I intended to become hitched asked me in the interview process, like in a James Bond movie — stirred or shaken — in this case “litigation of transactional?”
My response was “both” which, although the grand poohbahs of the firm ultimately agreed to it, put them on their heels for a moment.
“Well,” they said, “usually it’s one or the other.”
“Yup,” I agreed.
What they meant by this is that most attorneys — transactional attorneys — devote their careers to drafting and reviewing documents, advising, consulting, reconciling, and otherwise avoiding court. Do not be deceived into thinking that this is unimportant work. To the contrary, the engines of government and business, as well as many personal relationships, run on the fuel of well-crafted legal instruments. Too, a well-thought-out legal document that anticipates what disputes may one day arise, deters unnecessary litigation.
Corporate attorneys, compliance attorneys, regulators and a whole host of others fall beneath the umbrage of “transactional attorneys” — some of whom are flat-out brilliant and invaluable.
As alluded to above, the other main branch of the legal tree is “litigation” counsel. These are the guys — and, increasingly, gals — who take up the reigns when a disagreement flowers into a full-blown dispute. But from the branch of litigation sprouts two sublimbs that most times run in parallel, the first of which is “litigation” and the second of which is “trial.”
What this correctly suggests is that not every litigation attorney is a trial attorney, although many are.
It is not usual at all, especially in larger firms, for there to be attorneys — often younger ones — who help prepare a case for trial and other ones — often the more senior ones — who actually try the case before a judge or jury. While the trial guys may sometimes get the glory, they can also suffer the blame. But truth be told, an invaluable component of any litigation team is the often wickedly talented litigation-but-not-trial lawyers who put together the puzzle pieces of litigation and tee up the matter for success.
Though we’re talking here about attorneys, I’d be remiss to leave out paralegals who, as concerns both transactional and litigation matters, are often as wise and talented and smart as any attorney. A good paralegal — and there are many — is worth his, but most times her, weight in saffron stigma.
For the gears of this complex society of ours to freely and efficiently spin, both kinds of attorneys (and their trusted paralegal companions) are essential; transactional attorneys to put the wheels on, and litigation counsel to settle matters when the wheels invariably come off.
Back when I was a spring-green young attorney and interviewing for my first job and I answered “both” to what kind of lawyer do you want to be, what I suspected was that if I did both, being immersed in transactional matters would make me a better litigation attorney and vice versa. On reflection, 40 years on, I think now that is true. In drafting legal documents, knowing what rough edges may lead to litigation, makes one a better draftsperson. And knowing what sparks lead to fire in transactions makes one a more perceptive and efficient litigator.
Despite the grumbling of many jaundiced attorneys and the convenient slings and arrows of comedians, I, at least, find law fascinating work which, as I have written before, is really all about people and their fascinating hopes and dreams and stories.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.