So, You’re Thinking of Becoming a Transactional Lawyer

Milbank boasts one of the most dynamic and prestigious corporate practice groups in the country. The group includes more than 445 attorneys with a wide range of educational backgrounds and work experiences. Rod Miller, a partner in the firm’s New York office and a member of the Capital Markets Group, recently answered some of the most frequently asked questions he hears from law students and associates about pursuing a career in transactional law.

Does a liberal arts degree hinder or limit someone’s ability to become a transactional lawyer?

Not at all. No one should be intimidated from pursuing transactional law just because they chose to study the liberal arts instead of business or accounting. But you should have a desire to understand commercial transactions and understand why people in business are pursuing these transactions and endeavors—so, a curiosity is a prerequisite, not experience or education.

Which law school courses give you a good idea of what it means to be a transactional lawyer?

Historically, few, if any, did. For example, many law students think of their 1L Contracts course as a barometer of what transaction law is like, but in reality, like all other 1L courses, it is really just providing the legal foundation and principles for what it takes to create an enforceable contract.  Often, what you learn in Torts and Civil Procedure is every bit as important when structuring a transaction.  Similarly, courses on secured transactions or securities law are offered, but any substantive course like these is going to be only so helpful in helping you decide whether you will like transactional law or not.

A favorable trend has developed, however, and law schools have started to offer a number of practical courses that cover specific areas like negotiations in M&A transactions and “Deals” seminars, which I think do a much better job of exposing law students to the actual practice of transactional and business law. Law schools are also allowing students to take classes at different schools, like the business school. I had a Capital Markets class taught at the Business School, which did not in any way make me an expert in finance or capital markets, but it did open my eyes to something that I had never before had an opportunity to explore or understand.

How helpful are joint JD-MBA degrees?

I think they’re helpful, but I certainly don’t believe they’re a must. Getting some training in business is a fine idea. Our program, Milbank@Harvard, for example, has Harvard Business School professors teaching our mid-level associates finance, accounting, marketing, and management. I think it’s important to have that understanding, particularly for mid-level associates, but having formal business courses, let alone an MBA, is certainly not a requirement for a successful career in transactional law.

How important is it for associates to specialize in a particular kind of transactional law early in their career?

I believe the best transactional lawyers continue to be those who have some specialization (such as M&A or corporate finance), but are not limited by that area and not intimidated to venture into other areas when the need arises. One of my partners used to head up our leveraged finance practice, for example, but he is now a co-head of our project finance practice. Leveraged finance and project finance are very different in some ways, but similar in others. The ability to understand the fundamentals, but extrapolate into new areas, is what I believe makes a great transactional lawyer. Those who master the foundations of a particular practice area, but stay flexible about what they can and are willing to do, have the best chances at career longevity, fulfillment, and success.

Moreover, I am a firm believer that these days there is a premium on being able to master general transactional law because things are changing so quickly. If you understand the basics, you’ll be less intimidated by that change and capable of responding to, or even leading, the legal response to changes in the global economy and commercial landscape.

Is it a good idea for a transactional lawyer to get some litigation experience?

It can be, but is not necessary—again, we encourage associates to dabble in different areas of law, including litigation, in order to discover what area of the law most interests them. Like transactional law, there are many kinds of litigation, so it’s important to experiment. Some litigators gravitate to a practice that focusses on internal investigations and reporting to a company’s board of directors or a special committee. Other litigators love going to court and taking cases to trial. Still, others love the writing aspect of litigation, and so they lean toward appellate law. I actually practiced with a firm that focuses on litigation for a few years out of law school before turning to “Big Law” and the transactional world. 

I believe the legal skills and abilities of great lawyers are more similar across litigation and transactional practices than one might expect. While litigators focus much of their effort on fact-finding and legal analysis of historical events to resolve disputes that develop between parties, transactional lawyers engage in a similar effort to try to predict all of the things that could happen between transacting parties in the future and then find a mutually acceptable way to address those uncertainties.

What kind of skills will be important to transactional lawyers in the future?

The technology we have today places a major emphasis on turnaround time. Increasingly, the primary factor in measuring successful lawyering versus unsuccessful lawyering is how quickly the right answer can be attained or documents drafted. In a world of texts, email, and mobile devices, getting that right answer is expected in minutes or hours—certainly nothing like the days and weeks we used to have in the pre-digital age. The most successful attorneys are those who are both highly responsive to clients and comfortable with interweaving work and personal life. These days, we do a range of things that are personal in nature while at work (on-line shopping pops to mind), but also take work home with us and step out of personal events to take calls and return emails.

The thing that has never changed, and continues to be critical, is someone’s writing skills. If you’re going focus on anything before, during and after law school, you should focus on how to improve your writing. It’s absolutely critical. It means having a strong vocabulary, being able to write in different styles—for example, litigators have to write persuasively in briefs filed with a court, while transactional attorneys draft complex agreements, memos and presentations to a company’s board of directors or, particularly in the case of capital markets attorneys, prospectuses to be delivered to potential investors who are trying to understand a company and its business.

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