Thursday, April 24, 2008
Posted by Jeff Lipshaw
If you are about to teach the last class of a semester, and you've spent a total of 2,100 minutes (in a three credit class) or 2,800 minutes (in a four credit class), you may give some thought to what you say in the last five minutes or so. Not everybody is so inclined. I can imagine saying "and that wraps up res judicata," closing the book, and walking out. But that would mean giving up the chance to float some choice platitudes, and floating choice platitudes is why "I'm up here in the booth."
Here, for what it's worth, are today's closing platitudes to the students in Agency, Partnership, & LLC. And, no, you are not responsible for this on the exam:
I was a litigator for the first ten years of my career before I turned to transactional and corporate work.
Litigation is an incredibly structured way to live out your career.
This is in terms of (a) cases having a beginning, middle, and end in a certain repeating pattern, (b) the docket controlling your life, and (c) your relationship as a lawyer to the rules of advocacy, whether of argumentation or procedure.
People come into your world, and it’s easy to believe that the world is one constituted primarily by law, and norms set by law. But:
- Try to explain hearsay to a normal person.
- Try to explain the technique of being a deposition witness to a normal person.
Moreover, it is a world in which, all things considered, you exercise a moderate amount of control. Indeed, my sense of being in control was so developed that I came truly to hate two particular aspects of the litigation process - (1) doing direct examination of my own witnesses where I couldn't lead, and therefore had to rely on the witness, and (2) listening to the other lawyer's cross-examination of my witness (although the borderline unethical tactic of speaking objections during depositions gives some control to those willing to employ it).
Transactional practice is an interesting challenge, and particularly in this area of unincorporated associations, because of the relationship between the default rules and how the world works.
- First, rather than others being on your legal turf, you are a lawyer out on the business turf.
- Second, you are obliged to be a master of a web of doctrine. You must know what the implications are if the default rules of agency, partnership, corporate law, or LLCs apply.
- Third, you have the freedom, if you have the confidence and the ability, to change almost everything, by crafting a new set of rules.
- And finally, to be more than a lawyer’s lawyer, you need to understand that it’s a world not necessarily primarily constituted by law:
- That because the law, or a contract, or a partnership agreement, entitles you to a right or benefit, doesn’t necessarily mean that you or your client are obliged to seize the right or benefit.
- Indeed, one of my theories is that the willingness to have a legal right, but nevertheless to see it as either tradable or waivable, or simply to let it pass, is the grease that makes relationships, even economic ones, work.
I thus think of the great business lawyers as simultaneously being professional experts, creative artists, and moral and social philosophers.
I hope you have gotten some sense of that here.