Transactional practice vs. litigation

Some lawyers help bring people together, others help break them apart.

Some lawyers help bring people together, other help break them apart – that’s the best way to describe the difference between these two largest classes of lawyers.  Transactional practice involves researching, preparing and reviewing the documents that bring individuals and companies together: from contracts for large corporate mergers and acquisitions to the closing documents for the purchase of a house.  Ensuring compliance with relevant regulations and laws also falls under this heading.  Lawyers engaged in transactional practice never see the inside of a courtroom.  Their main work involves research, drafting, negotiating, and advising.

Litigators resemble more closely the kinds of lawyers you most often see on TV and in movies.  They are the ones who seek to resolve disputes in court – the contract that was (allegedly) breached, the crime that was (allegedly) committed, the amusement park that was (allegedly) negligent in operating its roller coaster.  Here too, however, the image does not match the reality.  While popular culture shows lawyers most often in court, the truth of litigation is very different: the overwhelming majority of trial attorneys’ work takes place outside the courtroom. They spend much of their time researching the law, investigating the facts (including interviewing clients and witnesses, as well as reviewing documents), exchanging information and documents with opposing counsel, analyzing the merits of the case based on the law and facts, and negotiating potential settlements.  Upwards of 90% of all lawsuits do settle before going to trial (although this varies depending on the specific area of law and the resources of the disputants).  Most litigators spend more of their in-court time arguing motions (often on procedural issues) than on trials. 

While there is some overlap between these two large areas, most lawyers (especially in larger firms) concentrate their practices on one or the other.  Solo and small firm practitioners tend to be more generalists and will engage in a mix of transactional work and litigation.