July 07, 2008
The deal's the thing
Posted by Usha Rodrigues

As I mull over law, literature, and business, I've been intrigued lately by a literary simile of my colleague Alex Scherr. My riff on it is that the litigator is like a novelist. He tells the jury a story. The deal lawyer is more of a playwright. She writes a script, sets the stage, and tells the actors what to do with the props. Generally she gives instructions as to how the actors are to behave, but she is not the actor, in either the theatrical or physical sense of the word. The novelist is ultimately in control of the action, but the playwright is at the mercy of others-- who are sometimes less than faithful to the script.

I'm not sure the description completely works, but I think it's this separation from "the action" that surprises and frustrates many young transactional attorneys, and helps explain why many of them ultimately move from law to the business side. There they make the decisions rather than just setting the stage.

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Comments (2)

1. Posted by Jeff Lipshaw on July 8, 2008 @ 3:09 | Permalink

Usha, I think your sense of there being a distinction is correct, and the novelist image for trial strategist is sound, but the novelist-playwright distinction loses me. Perhaps "director" would be better. The director uses somebody else's material (the author's) and can't actually do any of the performing herself. Whereas in litigation the lawyer can make a claim to being the author.

For some additional thoughts on this distinction, see: http://lawprofessors.typepad.com/legal_profession/2008/04/concluding-rema.html


2. Posted by David Friedman on July 8, 2008 @ 14:52 | Permalink

Usha, I like the metaphor. I would also note that quite often, the material (the script and the other props) is borrowed from previous plays (deals) and carefully customized. You never really have to start from scratch as a corporate playwright.

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