What Do Law Students Need to Learn about Transactional Law?

What Do Law Students Need to Learn about Transactional Law? | Andrew Abramowitz, PLLCThe Wall Street Journal reported recently on the Transactional LawMeet, which is basically the equivalent of a moot court competition for law students, but for transactional law. The impetus for this sort of program is the sense that the law school curriculum has always been more focused on training litigators, while transactional attorneys have to learn most of their craft on the job after graduation. I think this overstates it a bit. My first year “Lawyering” class at NYU Law included a mock negotiation. (I totally botched it, as my counterpart could see my notepad, indicating the final number I was willing to accept in the negotiation.) Also, most law schools have classes in the substantive law that’s most relevant to transactional work, e.g., Contracts, Corporations, Securities Regulation and Secured Transactions.

Nevertheless, it’s certainly true for me that I learned most of what I know for my practice through my work experience since graduation. I found myself pretty lost for the first couple of years. In my Securities Regulation class, I learned about, and regurgitated on my final exam, various rules relating to a “Registration Statement” and a “Prospectus,” but it wasn’t until I starting practicing law that I understood what these things look like and how they relate to each other. In a sense, this is not a problem, because the large firms where many transactional attorneys start out are set up to give junior associates time to get oriented without being tasked with sole responsibility for a matter (though clients often balk at paying high rates for those capable but, for the time being, clueless attorneys).

To the extent that law schools should have more of an active role in training transactional attorneys, I don’t think that negotiating strategy should be the primary focus. It’s far more important that students learn about the structure of various types of agreements and disclosure documents and how to go about drafting these things. Learning how to negotiate effectively can come with real world experience and tagging along with experienced attorneys; the initial focus should be on ensuring that the aspiring attorneys actually understand the thing they’re negotiating about. And the results of negotiations are usually determined by factors other than clever strategies on the part of the attorney, such as the relative bargaining power of each party to an agreement. The attorney’s role is mostly to ensure that the client understands the open issues and to communicate the client’s position effectively to the other side.