Differences between retaining litigation counsel and transactional counsel (a Poe distinction)

Once upon a midnight dreary as I pondered weak and weary over whether there are differences when law departments retain outside counsel for litigation or for transactional matters, I was stumped. Suddenly, a raven appeared.

“Technology,” quoth the raven. Undoubtedly there is more software and hardware involved in large-scale litigation (See my post of Oct. 1, 2005 on e-discovery software, Jan. 4, 2006 on e-billing, Sept. 10, 2005 on myths of matter management systems, and Aug. 27, 2005 on extranets.) than in a major acquisition, for example.

“Deadlines,” quoth the raven. Transactions, such as a lease negotiation, can have a more controllable effort and period of time and therefore perhaps are more amenable to budgets than litigation with its well-known vagaries of judges, dockets, and adversarial activity.

“Knowledge of the business,” muttered the raven. Good litigators need know nothing about the business itself if they are defending a discrimination case. Whereas, if you are involved in an acquisition or sale, you need to understand much about the underlying business processes and assets.

“Public record,” expostulated the black bird. An in-house lawyer can find out more about a litigator from the public record than that same lawyer can find out about an anti-trust lawyer.

“Client involvement,” croaked the raven. Clients often seem to wish litigation would simply go away (See my post of May 30, 2005 on the role of a client litigation representative and April 2, 2006 on litigators handling orphan matters.) whereas they are vitally interested in a business transaction, such as leasing new space.

These distinctions, conjured up from quaint and curious volumes of long-forgotten lore, may in the light of day make no difference in how inside counsel go about deciding on which firm or lawyer to hire for a given matter.