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Generally speaking, “if a company has to call its lawyer, it’s not usually a good day”—or, at least that’s the saying my non-lawyer parents like to reiterate. Lawyers are problem solvers who provide a service, and a client often enlists a lawyer’s services when the client isn’t having its best day (i.e., the client may be under investigation, or is facing a lawsuit, or has received a cease and desist letter or subpoena, etc.). In the transactional context, however, lawyers anticipate and attempt to solve problems before they arise; transactional lawyers often help clients come together and make deals. Transactional law is an antithesis to the notion that companies don’t call their lawyers on a good day.
The Transactional Lawyering Competition seminar course teaches students about the practice of law that aims to make deals, foster relationships, and result in a “win” for all parties while also preparing the Maryland Carey Transactional Law Team for competition. The course, taught by Coach Joe Ward ’03 and Professor Hilary Hansen, runs for about six weeks and provides an immersion experience in deal-making and practical drafting skills. Last spring I joined this course again (after having been a Transactional Law Team member the year before), and I had the chance to build on my understanding of the key elements of merger and acquisition agreements, including the transfer/operative provisions, definitions, representations and warranties, covenants, indemnification, and miscellaneous clauses. Beyond covering the deal basics, Coach Ward and Professor Hansen helped our nine-student class explore how deal terms are interrelated and how lawyers can most effectively engage in client advocacy by helping us to work through the fictional business deal created by Duke Law School’s second annual Interscholastic Transactional Law Competition.
The 2020 competition, hosted by Duke’s Transactional Law Society and sponsored by local and national law firms, presented a hypothetical acquisition of a tech start-up in the e-signature industry (the “Seller”) by a more established international tech company (the “Buyer”). Twenty law schools signed on to compete -- including Duke, Georgetown, Emory, Notre Dame, Northwestern, New York University, University of California at Los Angeles, University of Kansas, University of Michigan, University of Virginia, and University of Wisconsin, to name a few—and each school’s team was designated as either counsel for the Buyer or counsel for the Seller.
All teams received a set of general facts known to both parties and a set of client instructions confidential to either the Buyer or Seller. Our team represented the Buyer, and over the course of the first half of the spring semester, we prepared for competition by participating in a client conference call, drafting a stock purchase agreement (“SPA”), marking-up a stock purchase agreement drafted by a team representing the Seller, and practicing negotiation strategies we would use during the competition. At the same time, we were working to demonstrate our readiness to represent the Maryland Carey Law Transactional Law Team, because only four representatives from our nine-student class would make up the delegation traveling to Duke: Skyler Santomartino, Katilin Anderson, and I would be the competing team members, and Kirsten Gallo would attend as an observer.
In the last two weeks leading up to the competition, we focused on negotiation practice with our fellow classmates. Mock negotiations helped us as negotiators develop our overall strategy, our delivery of certain offers and justifications, our real-time responses to unanticipated information, and our time management. Each negotiation round was only 50 minutes long, so our team had to confirm that we could recognize an impasse and create ways to shift conversation into more productive directions.
Duke hosted the in-person negotiations on February 22, 2020. Kaitlin, Skyler, and I had only two rounds—just 100 total minutes--to efficiently negotiate our best deal in front of transactional law practitioners from around the country. The practitioners who volunteered to judge the competition had already reviewed the general facts, both sides’ confidential facts, and each team’s draft SPA and marked-up draft SPAs. On competition day, the judges analyzed our professionalism, communication, understanding and prioritization of the issues, and our real-time creative-thinking and negotiation skills.
Kaitlin and I negotiated against the University of Georgia team in the first round; Skyler and I then negotiated against the University of Kansas team in the second round. Of the ten teams that represented the Buyer, our team scored third place overall (for our performance in both drafting and negotiation), behind Emory and Wisconsin. University of Georgia, our first-round competitor, earned second place of the ten Sellers at the Competition, falling only to University of California at Los Angeles.
The transactional law course and competition teach students how to think creatively and negotiate effectively. Not every issue needs to be a “must-win” issue. Instead, students are encouraged to “grow the pie” rather than divide it. The course and competition force students to develop skills supplementary to doctrinal courses, but essential to real-world practice. I strongly recommend a practical skills course and competition to any law student interested in deal-making, negotiations, or any other form of client advocacy.