February 14, 2013

BARELY LEGAL: Deal or No Deal? How Should I Know? I Went to Law School.

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Law school today is mainly geared toward life in the courtroom, but many law students do not intend to become litigators.  Some of us want to be business lawyers, or general counsel for a company, or do some other type of transactional work (for those of you unfamiliar with transactional work, it consists of drafting contracts, negotiating deals and handling other aspects of law related to business transactions.) Unfortunately, our legal education leaves us woefully unprepared for such work. To make matters worse, when second years remember that the world is not limited to Myron Taylor Hall and start competing for prestigious summer jobs at law firms, they often encounter the question, “Why transactional work?”  A detailed response would carry a lot more weight, but most of us, who lack transactional experience, can only offer vague generalities.  Why this gap in legal education?

Things weren’t always this way.  In the early colonial days, few men who practiced law went to law school.  They may have read a few legal books, but most learned their skills through professional apprenticeships.  Apprenticeships and other forms of on-the-job training were often required components of legal education (in addition to, or sometimes instead of, formal schooling) until around 1950, when law school attendance became a compulsory prerequisite to bar admission. The decision to scrap practical training in favor of tedious academic study is perplexing, and it puts law students at a real disadvantage when trying to enter a field that they know little about.

During the second summer in law school, those of us who are lucky enough to get jobs at large firms are finally exposed to transactional work, although we have little prior knowledge or skill to apply to the area.  When asked if I knew how to craft a venture capital partnership agreement on my first day, I felt like the lawyer was speaking another language.  Luckily, firms don’t expect us to know much about transactional work, and the expectation is that we will pick up any necessary skills on the job. A few years of practice, however, are usually necessary to bring a young transactional lawyer up to speed.  If transactional work was introduced during law school, emerging lawyers would have greater familiarity with the area, instead of picking it up on the fly.  Reading case law and legal research are necessary in any legal career, but they tend to be more helpful for litigation.  Aspiring transactional lawyers are left out in the cold.

To be fair, Cornell Law School does offer a few courses that expose students to transactional law.  LAW 6572: Transactional Lawyering, taught by Professor Whitehead, is an immensely popular course that teaches students about the basics of negotiating an acquisition agreement.  Later, they are divided into buyer and seller teams, and they have the opportunity to mark-up a draft contract and negotiate with the opposite side.  The class ends in a “competition,” with real lawyers and businesspeople evaluating the students’ performance and offering feedback on how to improve.  However, this course is an exception, and curricula at other law schools are usually not as innovative.

There are certainly other ways to learn more about transactional work. An innovative group founded at Drexel called LawMeets is dedicated to the philosophy of “learning by doing.”  The group seeks to help students learn transactional skills through series of practical exercises that can be found online.  LawMeets also hosts regional and national meets, similar to the Cornell Transactional Lawyering Competition, where students can compete in negotiations that are judged by experienced lawyers.  The lawyers critique the teams and provide advice about how to do things in practice.  LawMeets has also recently launched some massive open online courses taught by legal professionals that can expose students to practical assignments that they can expect from a law firm, like advising clients or drafting indemnities. In the interactive online peer review, you have the chance to view your peers’ video responses and see how others approach transactional law. Typically, that peer comparison would occur in the classroom, but with so few courses dedicated to transactional law, the opportunity for peer review is limited.

Legal education has not changed since its inception, and some reform is needed if students are to be prepared to enter the job market with practical knowledge.  Aspiring transactional lawyers do benefit from the research and analytical skills taught in law school, but we would rather be learning about what makes a good contract provision and how to negotiate than obsolete property law from the time of fiefdoms that is no longer even good law.  Times have changed, and legal education needs to, too.

Mystyc Star Metrick is a third-year law student at Cornell Law School. She may be reached at msm266@cornell.edu. Barely Legal appears alternate Thursdays this semester.

Original Author: Mystyc Star Metrik