In my Deals class, we talk about what transactional lawyers do. I often make the case that lawyers do more than serve as document drones -- managing information problems, engaging in regulatory arbitrage, figuring out incentive schemes, and so on. Soon I'll be posting my case study on the MasterCard IPO, which offers some nice examples of how lawyers don't merely act like monkey scribes.
But before I get all Pollyanna about the stimulating life of a transactional lawyer, I thought I'd present the darker side. Not every interaction with opposing counsel is pleasant, civil, and fun. Some of you may recall the voicemail from a Winston & Strawn lawyer to a Latham lawyer that was floating around on the blogs a couple of years ago (HT: KinsellaLaw). If you haven't, it's worth listening to. Even if you have heard it before, it's worth another take, just to count the curse words. (Warning: the W&S lawyer drops more F-bombs than Crash.)
Here's the voicemail:
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1. Posted by Robert Schwartz on March 7, 2006 @ 20:12 | Permalink
Victor is exagerating the thrill of being a transactional lawyer. Of course, it was such a thrilling experience that he bailed after 3 years of it. I, OTOH, did that for almost 30 years as an associate, an i-house lawyer, and a partner in a law firm.
I always thought of myself as Marvin the Parinoid Android in the Hitchhiker's Guide to the Galaxy.
Marvin: "Reverse primary thrust, Marvin." That's what they say to me. "Open airlock number 3, Marvin." "Marvin, can you pick up that piece of paper?" Here I am, brain the size of a planet, and they ask me to pick up a piece of paper.
Marvin: Here I am, brain the size of a planet, and they ask me to take you to the bridge. Call that job satisfaction, 'cause I don't.
[Arthur and Ford are each hit in the face unexpectedly by some unknown flyswatter-like thing, then Zaphod is hit]
Zaphod: Zarquon! What was that? Geez...
Marvin: [depressed] I'd make a suggestion, but you wouldn't listen.
Marvin: [even more depressed] No one ever does.
In the court room, the lawyer is in charge, the client and all of his other advisers, have to defer to the lawyer who makes the process go. In the negotiating room, the lawyer is, at best, a person who solves problems created by the requirements of regulators, auditors, bankers etc. He does not make the process go, he keeps it from going off-track. When the meeting is over, everybody else goes out to dinner and the lawyer cleans up the conference room and starts pushing the paper.
2. Posted by Jeff on March 8, 2006 @ 7:28 | Permalink
In my experience, comments like the ones in the voice mail are often used by younger attorneys, hoping the bluster makes up for substance.
In addition, there is a prestige hierarchy by city, and by firm within a city. Younger lawyers who perceive themselves at the top of the hierarchy often try to push opposing counsel around with voice mails like the one we listened to. The nature of the voice mail is often the same: "Make the changes we requested BECAUSE we requested them and we're smarter than you." Often it masks the fact that the person leaving the message does not quite understand what is going on.
In my experience, partners are less likely to talk that way to opposing transactional counsel, probably because the partner is comfortable with his or her own legal skills and does not need to bluster to get something accomplished.
Not all deals are friendly, of course, but often the goals of the opposing counsel are the same: to get the deal done. As Mr. Schwartz said, we are problem solvers, but it needs to be done in a way that business people would call "value added." The worst label a client can tag you with is "deal killer."
3. Posted by Christine on March 8, 2006 @ 8:00 | Permalink
In (admittedly only) five years of transactional practice, I only witnessed or heard of opposing counsel getting out of hand and cursing one time. We were doing a nationwide roll-up followed by an IPO, and underwriter's counsel called my senior colleague a fairly bad name on the speaker phone in the virtual presence of our client (issuer). This was in 1994, so before www.martindale.com. We had to all run to the library to look up the guy in the Martindale-Hubbell. He wasn't there. Why not? Because he had only been practicing seven months. If I recall, he was not invited to the closing dinner.
4. Posted by Robert Schwartz on March 8, 2006 @ 10:34 | Permalink
I generally had no problems with opposing counsel. Clients on the other hand. let us put it this way. One of them is still on the lam in Peru.
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