Thinking like a deal lawyer

Journal of Legal Education

Volumn 54, Issue 2, 2004, Pages 223-234

  Stark, Tina L ^a,b  

^a FORDHAM UNIVERSITY   (United States)

^b In House Legal Education Inc   (United States)

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[No Author keywords available]

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EID: 4944222401     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (19)

1. Only recently has the academy focused its efforts on students who intend to have a deal practice. See Edith Warkentine, Kingsfield Doesn't Teach My Contracts Class: Using Contracts to Teach Contracts, 50 J. Legal Educ. 112 (2000); Daniel B. Bogart, The Right Way to Teach Transactional Lawyers: Commercial Leasing and the Forgotten "Dirt Lawyer," 62 U. Pitt. L. Rev. 335 (2000); Karl S. Okamoto, Learning and Learning-to-Learn by Doing: Simulating Corporate Practice in Law School, 45 J. Legal Educ. 498 (1995).
2. Only recently has the academy focused its efforts on students who intend to have a deal practice. See Edith Warkentine, Kingsfield Doesn't Teach My Contracts Class: Using Contracts to Teach Contracts, 50 J. Legal Educ. 112 (2000); Daniel B. Bogart, The Right Way to Teach Transactional Lawyers: Commercial Leasing and the Forgotten "Dirt Lawyer," 62 U. Pitt. L. Rev. 335 (2000); Karl S. Okamoto, Learning and Learning-to-Learn by Doing: Simulating Corporate Practice in Law School, 45 J. Legal Educ. 498 (1995).
3. Only recently has the academy focused its efforts on students who intend to have a deal practice. See Edith Warkentine, Kingsfield Doesn't Teach My Contracts Class: Using Contracts to Teach Contracts, 50 J. Legal Educ. 112 (2000); Daniel B. Bogart, The Right Way to Teach Transactional Lawyers: Commercial Leasing and the Forgotten "Dirt Lawyer," 62 U. Pitt. L. Rev. 335 (2000); Karl S. Okamoto, Learning and Learning-to-Learn by Doing: Simulating Corporate Practice in Law School, 45 J. Legal Educ. 498 (1995).
4. I also use this exercise in my clinic, Introduction to the Deal.
5. As an aside, the passive voice is correct in this instance. The issue is not whether the seller has driven the car more than 500 miles, but whether anyone has driven the car more than 500 miles. The issue is the act, not the actor.
6. For example, the difference between a representation and a warranty. See CBS Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997 (1990).
7. The class also looks at the role of covenants as a risk allocation mechanism. There the issue is the "degree of obligation" that the promissor makes. Does the promissor absolutely obligate itself to do something, or does it obligate itself to use only commercially reasonable efforts?
8. Students collaborate on all in-class exercises and most homework assignments. The benefits are manifold. First, to some degree this practice reflects the real-world environment where lawyers work together. It may not reflect the hierarchical structure that junior lawyers face, but not all legal work is done in that type of structure. (Associates often work jointly on such projects as due diligence, and senior lawyers collaborate on everything from deal structuring to negotiation strategy.) Second, working together is fun, so the students become more actively engaged in the exercise. Third, collaborating provides students with the opportunity to test their ideas in a nonthreatening environment. Fourth, in broaching and defending their ideas, the students are taking the first steps in learning how to negotiate transactional issues. See Dina Schlossberg, An Examination of Transactional Law Clinics and Interdisciplinary Education, 11 Wash. U. J.L. & Pol'y 195, 202-03 (2003); Catherine Gage O'Grady, Preparing Students for the Profession: Clinical Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer, 4 Clinical L. Rev. 485 (1998); Jay M. Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469, 474-75 (1995).
9. Students collaborate on all in-class exercises and most homework assignments. The benefits are manifold. First, to some degree this practice reflects the real-world environment where lawyers work together. It may not reflect the hierarchical structure that junior lawyers face, but not all legal work is done in that type of structure. (Associates often work jointly on such projects as due diligence, and senior lawyers collaborate on everything from deal structuring to negotiation strategy.) Second, working together is fun, so the students become more actively engaged in the exercise. Third, collaborating provides students with the opportunity to test their ideas in a nonthreatening environment. Fourth, in broaching and defending their ideas, the students are taking the first steps in learning how to negotiate transactional issues. See Dina Schlossberg, An Examination of Transactional Law Clinics and Interdisciplinary Education, 11 Wash. U. J.L. & Pol'y 195, 202-03 (2003); Catherine Gage O'Grady, Preparing Students for the Profession: Clinical Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer, 4 Clinical L. Rev. 485 (1998); Jay M. Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469, 474-75 (1995).
10. Students collaborate on all in-class exercises and most homework assignments. The benefits are manifold. First, to some degree this practice reflects the real-world environment where lawyers work together. It may not reflect the hierarchical structure that junior lawyers face, but not all legal work is done in that type of structure. (Associates often work jointly on such projects as due diligence, and senior lawyers collaborate on everything from deal structuring to negotiation strategy.) Second, working together is fun, so the students become more actively engaged in the exercise. Third, collaborating provides students with the opportunity to test their ideas in a nonthreatening environment. Fourth, in broaching and defending their ideas, the students are taking the first steps in learning how to negotiate transactional issues. See Dina Schlossberg, An Examination of Transactional Law Clinics and Interdisciplinary Education, 11 Wash. U. J.L. & Pol'y 195, 202-03 (2003); Catherine Gage O'Grady, Preparing Students for the Profession: Clinical Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer, 4 Clinical L. Rev. 485 (1998); Jay M. Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469, 474-75 (1995).
11. This definition of adding value is not at odds with the concept of lawyers' adding value by acting as transaction cost engineers. Rather, finding and resolving business issues is one aspect of being a transaction cost engineer. See Ronald J. Gilson, Value Creation by Business Lawyers; Legal Skills and Asset Pricing, 94 Yale L.J. 239 (1984).
12. In an unrelated survey, Karl Okamoto asked partners a similar question. The answers were, not surprisingly, quite similar. See Okamoto, supra note 1, at 498.
13. When I teach the five-prong framework, I review with the students some of the more basic risk reduction mechanisms: security agreements, guaranties, indemnities, letters of credit, insurance, escrow agreements, and a change in deal structure.
14. In addition to teaching at Fordham, I teach CLE programs at law firms. One of the courses that I teach most frequently is the five-prong framework. Both partners and associates have given the framework a very warm reception. Midlevel associates particularly like it because it helps them to cross the bridge from junior associate (read: mundane tasks) to senior associate (read: good work).
15. See Larry A. DiMatteo, Managing the Legal Factor: The Legal Implications of Business Decision Making, 4J. Legal Stud. Bus. 165 (1995).
16. The relatively large number of classes on accounting-related topics reflects the importance of these topics in a deal practice. Indeed, one commentator has suggested that deal lawyers must be familiar with accounting in order to fulfill their ethical obligation of competency. See Lawrence A. Cunningham, Sharing Accounting's Burden: Business Lawyers in Enron's Dark Shadows, 57 Bus. Law. 1421, 1449-59 (2002).
17. The need to understand insurance concepts is brought home to the students in assigned readings that describe litigation concerning the attack on the World Trade Center. At issue is whether the destruction of the twin towers was one occurrence (one terrorist attack against two buildings) or two occurrences (two attacks - one against each of the twin towers). If there were two occurrences, the insurer's liability would double to approximately $7.2 billion.
18. To state the obvious, being a panelist on a CLE program is not a gauge of a person's teaching ability. But I knew two of the guest lecturers, and the third had excellent recommendations.
19. Early in the semester one of Fordham's librarians spoke to the students about the research resources that are available on the Web.