Litigation vs. Transactional Law: What the heck is the difference? Daily Life as a New Lawyer.
Litigation vs. Transactional Law
So here’s the deal. There are literally hundreds of different legal practice areas out there, but they all pretty much fall into one of two main “umbrella” areas of the law: litigation and transactional law.
Litigation is the area we’re all more familiar with because it involves the “catch-the-witness-in-a-bold-faced-lie-on-the-stand” courtroom drama of the amazing lawyer movie classics “Legally Blonde,” “A Few Good Men,” and “My Cousin Vinny.”
But…transactional law on the other hand is not something that most of us have ever heard about (even in law school). A lot of badass lawyers practice transactional law, and yet, because transactional law doesn’t provide as much glamor and pizzazz as our beloved courtroom lawyering scenes, we aren’t exposed to it much.
Transactional law is kind of like the awkward stepchild that’s kept in the cupboard under the stairs. And it’s only when you happen to stumble into a conversation with a transactional lawyer (like that happens every day) are you even made aware that this entire other area of the law exists.
So if you’ve heard the terms “litigation” and “transactional law” thrown around, but have never been 100% clear on what they meant (don’t worry you’re not alone), stick around because we’re going to dive into:
What is the difference between litigation and transactional law? (because I’m 10 years out from law school and I still don’t know)
What does day-to-day life look like for litigation and transactional lawyers? (it’s all lawyering but it looks very different)
What is the difference between litigation and transactional law?
In a nutshell, litigation is all about…lawsuits. That is, the entire process from the filing of a lawsuit all the way until jury verdict (and everything in between). Litigation is what most of us think of when we think about lawyers: voir dire, oral arguments, evidence, objections, legal briefs.
Even though the reality is that almost all lawsuits settle before they reach the jury verdict stage (literally less than 1% of civil cases actually go to trial). Which is why the “in between” stages of litigation are where most litigators spend most of their career. We’re talking pleadings, discovery, settlement negotiations, and pre-trial.
Transactional law (or “corporate law”), on the other hand, is all about closing deals (I see you, Harvey Specter). You're not going to be in the courtroom making a brilliant argument to the judge for why the other side’s case should be thrown out. In fact, you won’t be in a courtroom at all. Instead, you'll be in the business of, you guessed it, “transactions.” In other words, creating, interpreting, and negotiating contracts for businesses. Essentially any agreement or decision businesses make with another entity must be written down and made official–which is what transactional lawyers specialize in.
If you want to see a litigator and transactional lawyer nerding out over what we see as the differences in these two overarching areas of the law, definitely check out the YouTube video that I made with Brett Cenkus about litigation v. transactional law.
Litigation vs. Transactional Law: What does day-to-day life look like for litigation and transactional lawyers?
What your day-to-day will be like as a litigator or transactional lawyer will depend on things like the size of the law firm you work for, the type of clients you represent, and your seniority level.
That being said, below are the three main types of projects for each type of law that you can expect to work on when you first start out as a junior lawyer.
When you start as a litigator, you will primarily be doing:
Case law research. This is the one practical skill that we’re actually taught in law school, which makes it a favorite task to delegate to junior litigation associates (plus, most senior lawyers have totally forgotten how to do it). Case law research is all about strategically (and quickly) searching the hundreds of thousands of written judicial opinions to try and find how judges have previously answered nuanced legal questions…that also affect an issue in your particular case. It’s like searching for a needle in an endless stack of needles. I love it (unironically).
Discovery. The discovery phase of litigation is without a doubt the longest and most extensive part of every lawsuit. Discovery is all about “discovering'' relevant information about the case. In practice, that plays out as each side demanding information (in the form of documents and depositions) from the other side. It sounds easy enough. But as you can imagine, neither side wants to give up any information without a fight. A very meticulous and exacting and repetitive fight…through emails, phone calls, and court filings. Junior litigators are always tasked with drafting the requests for this information in the form of interrogatories, requests for production, and requests for admissions. Yay.
Document review. This is the ultimate grunt work and most dreaded task of junior litigators. As we just talked about, a huge part of civil litigation is discovery, which means that your side is going to request a ton of documents from the other side…and the other side is going to request a ton of documents from your side. When your side (i.e. your client) produces documents, those documents must first be reviewed to make sure the documents are “relevant” to the litigation and “not privileged” before being sent to the opposing party. Junior litigators do that review. And when the opposing party produces documents to your side, those documents must immediately be reviewed to try and find any documents that are “relevant” to the issues in the case. Junior litigators do that too. So document review is essentially going click, click, click through thousands of documents in a massive document database for hours on end. Mind-numbing.
As you get more senior, you will begin to take on more high-level tasks such as taking depositions, drafting legal briefs, and preparing witnesses and exhibits for trial (or mediation). P.S. This is the fun stuff!
When you start out as a transactional lawyer you will primarily be doing:
Due diligence. This is all about looking for “material terms” in any of the documents that the other side has given you that are relevant to the deal (sort of the cousin of “document review” in litigation). These “material terms” are important because they need to be disclosed to investors. In practice, this also looks like click, click, click’ing through thousands of documents to try and identify these “material terms.”
Document drafting. This is essentially taking a similar document from a similar deal (which can be as much as 300-400 pages long), stripping out all the old terms, and adding in all the new terms for the current deal.
Client calls. This is exactly what it sounds like – sitting in on conference calls with the client to discuss the “material terms” that were found, go over the terms of the deal, and ultimately make sure that the agreement looks exactly the way the client wants it to.
As you get more senior, you will begin to work directly with clients (rather than just being the “low man on the totem pole” sitting and listening silently), as well as running entire deals by yourself. P.S. As you may be able to tell from the extremely brief explanation of the above tasks, I am a litigator by trade (not a transactional lawyer). So don’t take it from me. Check out what the day-to-day of a transactional lawyer actually is like in the YouTube video I made with Marissa Geannette, who worked as a badass transactional lawyer for years.
The reality is that when we talk about lifestyle factors of litigators and transactional lawyers, there aren’t a lot of differences. At least not because of the type of type of law that you practice.
1. How many hours do lawyers work each day?
The number of hours that you’ll work as a lawyer is wayyy more dependent on where you work, not whether you’re practicing litigation or transactional law. Let me explain.
If you work in a law firm (as a litigator or a transactional attorney), you will be expected to bill between 1,800 billable hours (for a smaller law firm) and 2,200 billable hours (for a bigger law firm) per year. That number by itself doesn’t mean anything to any of us, so let’s break it down.
If you work 50 weeks per year (assuming you take two weeks of vacation), that means that you’ll need to bill 36-44 hours per week. Not bad, right?
The kicker is that you’re not doing “billable” work every hour that you’re in the office. For anyone who has ever worked an office job, you know that your day also consists of personal calls, coffee breaks, firm-wide meetings, and non-client work.
As a result, a “productive” day in the office will usually consist of 7-8 billable hours per day, with an additional 2-3 hours of physically being in the office (or “on the clock”) not doing billable work, for a total “working” time of 9-11 hours per day.
But the thing to keep in mind about working at a law firm is that the workflow is never consistent. It ebbs and flows (for both litigation and transactional practice groups). Which means that some weeks you won’t have enough work to hit your 7-8 billable hours, and you’ll have to make that up down the line at some points. Other weeks you may be crazy busy and staying at the office working until 3AM.
This unpredictability in schedule is a huge cause of burnout in lawyers, since we so often have to cancel plans, drop everything and get back on our laptops, and cater to unexpected client needs at all hours of the day and night.
P.S. If you want to go down the rabbit hole on the topic of billable hours and what that actually looks like, check out my YouTube video on “how much do lawyers work?” here.
2. Let's talk money. How much do lawyers get paid?
Just like how many hours you will work as a lawyer doesn’t depend on whether you practice litigation or transactional law, how much money you make as a lawyer doesn’t depend on whether you practice litigation or transactional law either. It depends on where you work.
If you work in the private sector (i.e. law firms and corporations), you can expect to make a median of $200,000 (source) starting out from law school.
If you work in the public sector (i.e. government agencies and public interest organizations), you can expect to make an average of $60,000 (source) as an entry-level lawyer graduating from law school.
Now, it is true that transactional law only really exists in the private sector (because drafting 8-figure deals between companies is not so much the specialty of the public sector).
But the point here is that if you work at a law firm, you won’t be paid more if you’re a litigator or a transactional lawyer. You’ll be paid the same (with bonuses dependent on performance).
If you’re interested in how much a lawyer makes depending on where you work, check out my YouTube video answering the question “how much do lawyers make?”
3. What Type of Lawyer Should I Be?
If you’ve read this far and you’re wondering how in the world you’re supposed to choose between becoming a litigator or a transactional lawyer, don’t worry. You don’t have to know yet.
Most of us have zero clue what type of law we want to practice when we start law school, and only really find out if we like litigation or transactional law once we’ve actually started practicing it. So no pressure.
That being said, if you are looking to be more proactive and intentional than any of us ever were, a step that you can take to begin to decide what type of law you might want to practice is something called “informational interviews.”
This is just a fancy way to describe identifying, reaching out to, and talking to lawyers to ask them about how they made the decision to practice litigation or transactional law (and what they enjoy or hate about it), so that you can start to get a sense for what area of the law you think might be a good fit for you. I know it can be intimidating the first time you do it, so here’s a step-by-step video on exactly how to find and talk to lawyers (in informational interviews).
Aaand as extra credit, if you’re in the mood for a quick (and deliciously fun) way to understand whether litigation or transactional law would be a good fit for your skills, interests, and lifestyle goals, click here to take the free “What Type of Lawyer Should I Be?” quiz. See you on the other side.
