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Tuesday, July 28, 2015

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink

Comments

Here is a repost of a comment I made on Paul Caron's blog on this same topic:

For what its worth, a very successful big law business partner once told me that she thought her greatest contribution to most deals (her specialty was representing large banks making mezzanine loans to LBOs in the 1990s) was telling the client what "the market" was -- that is, what sort of terms the lender could reasonably expect to demand from the borrower. Sort of like investment bankers.

Posted by: Dave Anderson | Aug 8, 2015 4:15:37 PM

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