Recently, I was communicating with an adversary on a transactional matter, and we discussed some gripes we had with matters we were handling. I mostly work on litigation matters, and was almost entirely a litigator before starting my own shop around four and a half years ago. These days, however, I pick up transactional matters from time to time to fill in the hours I am not spending on litigation matters. In any case, I was explaining to my adversary about how stressful my week had been with litigation matters, and he responded by saying that, as a transactional attorney, he rarely faces the same stress as litigators. This got me thinking: do some factors about litigation make it more stressful than working on transactional matters?
From my perspective, a few characteristics of litigation which are not present in transactional matters add to the stress litigators face. For instance, litigation is often a zero-sum game in which one party wins and another party loses. Sure, many litigation matters, and issues within litigation are resolved through some type of agreement between the parties. However, if the parties cannot agree to a resolution, the court will eventually need to decide a matter after motion practice, or a court will need to dispose of a matter after trial.
This can make the litigation process extremely high stakes for everyone, including the lawyers. Attorneys at motion hearings and trials can almost seem desperate as they convey the best arguments that might help their client prevail. Transactional matters can be a much more collaborative enterprise in which no party loses everything and no party wins everything. Accordingly, the stakes might not be as high as certain kinds of litigation matters, and the stress involved might be less than in other areas of the law.
Litigation deadlines can also make litigation significantly more stressful than transactional matters. If a litigant files a motion, there is usually a given date by which the opposition papers and reply papers must be served in order to be considered timely. Moreover, courts set deadlines about all kinds of issues, including depositions, expert disclosures, and others. Deadlines can create immense pressure on litigants since there can be major consequences if litigants do not complete tasks by a given deadline. If a litigant has multiple tasks to complete around the same time, it can be difficult to complete everything by a deadline, and this can create enormous pressure.
Many transactional matters also have deadlines. Sometimes, parties need to complete deals under tight circumstances. Indeed, a friend of mine was involved in a deal that began on the Friday before this past Labor Day that needed to be inked by the Tuesday following Labor Day. This probably involved an insane amount of work over a holiday weekend during which many people have longstanding vacation plans. However, tight deadlines are a fundamental part of the litigation process, and the stress associated with meeting these deadlines can make litigation more stressful than many types of transactional matters.
Another thing that makes litigation more stressful than transactional matters is that many events within litigation are public in nature. Often, when parties argue motions in court or present cases at trial, they need to perform in front of an audience that includes their clients. This is very different from transactional matters during which parties do not have to perform in front of other people and merely need to interact with the people involved in a deal in private.
I was at a bench trial earlier this year, and dozens of lawyers and community members were present. This definitely added to the pressure of the event, and when things did not go my way during the trial, I could hear people commenting in the background. Plus, my client was viewing the trial, so I could be criticized and evaluated in real time. In addition, I have argued motions with literally dozens of other lawyers in the courtroom waiting to argue matters themselves. To me, it is much more daunting to argue matters in front of other lawyers than random members of the public since we are all part of the same professional community and lawyers might have more knowledge with which to critique the work on another practitioner. This adds another level of stress and nervousness that has no easy equivalent when lawyers handle transactional work.
All told, there are many things to stress about when handling transactional matters, and the short deadlines involved in some deals, and the big stakes at issue can definitely make certain transactional tasks stressful. However, many built-in characteristics of litigation ensure that many litigation matters are more stressful than most run-of-the-mill transactional projects.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
