I’m Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park Florida. I want to talk for a minute about how lawyers can sometimes be pigeon-holed into certain categories and why you want to avoid that. You have to know whether to hire a courtroom lawyer vs. contracts lawyer.
Courtroom Lawyers vs. Contract Lawyers
And I think that the most common pigeon-holing so to speak that goes on is whether a lawyer is a litigator or a transactional lawyer. And there’s a sense that the two never cross.
A litigator is a lawyer who spends most of their practice in a courtroom in front of a judge and juries. A transactional lawyer is a contracts lawyer who may never have stepped foot into a courtroom. Maybe they didn’t have to, maybe they didn’t want to. But you have to assume that any contract you sign or that you present may end up in a courtroom. Otherwise, why are you signing it in the first place? Contracts are legally binding documents that may require–in the case of a dispute–a courtroom decision.
Real Estate Transactions vs. Real Estate Litigation
And in many areas that is true. You might have a lawyer who litigates real estate issues, title deficiencies, undisclosed defects on the property and they may never do a real estate closing because those two things can be completely separate and distinct. But there are a lot of areas where the separation should not exist and I think the most common area is in the writing of contracts.
And we have been involved in so many cases where you read the contract and you listen to what the client tells you and you’re thinking to yourself, based on what he’s telling me how on earth did they end up with this document as their contract?
Contracts Don’t Mean You’re Covered
We recently had a case that ended up when you’ve taken into account both sides there were hundreds of thousands of dollars in attorneys fees. Practically approaching a million dollars in attorney’s fees. And it all boiled down to they had this beautiful, looked beautiful, 20, 30-page contract that had been written up in quite a complex transaction.
But when you listen to the client tell you about the essence of what the deal was supposed to be you just have to look up and tell the client, it’s just not there. There are all these beautiful paragraphs that I’m sure were cut and pasted from different forms from here and there and it all flows pretty well, but it’s not what the client had intended the contract to be.
A Litigator Has Litigated Contracts
And a litigator when they’re considering a contract is often because he’s been to court and he’s litigated over contacts and he’s litigated over a particular phrase or whether the comma is at the beginning or the end and all of those things which can change the meaning of paragraphs is much more sensitive to the idea of whether or I should say much more sensitive to the concept of whether the written word is consistent with the mental impressions of the parties of the contract as to what they intend.
And he’s been to court, he’s litigated these things. He’s argued it in front of juries, he’s listened to judges and juries comment about the language that’s been used in various litigation regarding contracts and so he’s much more sensitive to, “all right, if this gets into a dispute, does this really say what is on the minds of these people or is it something that came out of a book that sounds great?”
We Listen to What Clients Want
And there’s a big difference there and we’ve found that many times when a contract is written by a lawyer who has never been in the courtroom is all very formal, it’s all very legalistic, but it may not be the agreement that the parties had intended. Which is why when we write a contract I listen to the client about what it is that they’re talking about. Whether it’s a real estate deal, whether it’s a franchise, whatever it may be and we’ll say, “when all is said and done, I want you to take a legal pad and forget about what any legalese, forget about any structure, just give me 1, 2, 3, 4, 5, 6, what is the deal supposed to be in your mind and what is that?”
Contracts Cover the Deal
And we’re going to put together a contract based upon those elements that you’ve told us makes up the deal. So we’re going to conform the deal to your concept of the transaction you’re about to enter into rather than try to put a square peg into a round hole which is to conform your deal to some form paragraphs out of a book somewhere.
So when you’re getting ready to write a contract, ask your lawyer “have you ever litigated issues like this? Have you ever been in a courtroom and dealt with litigation over these types of issues or this type of contract that I’m entering into?”
Because that can be a very important aspect of whether the lawyer can write the kind of agreement that you want. Again I’m Eric Lanigan, Lanigan and Lanigan attorneys Winter Park Florida.
