Is the role of business lawyers to provide a quantifiable economic benefit to their clients? Or do they have a greater role to play? In an article titled “Beyond Gilson: The Art of Business Lawyering” in the upcoming issue of the Lewis & Clark Law Review, Penn Law’s Praveen Kosuri argues that while the technical aspects of business lawyering are important, the best business lawyers embrace their role as comprehensive advisors to their clients. In addition, Kosuri explains how law schools — culminating with their clinical programs — can better train their students to become those kinds of advisors.
Kosuri, a former investment banker, corporate lawyer, and commercial litigator, is Practice Professor of Law and Director of the Entrepreneurship Legal Clinic (ELC) at Penn Law.
Law schools instill their graduates with technical lawyering skills, Kosuri argues, but the advising and problem-solving talents they need in business are not necessarily developed in a traditional classroom setting.
“In many ways,” he writes, “what exceptional business lawyers practice is much more art than science.”
The conception of what business lawyers do has changed over time, Kosuri explains. Thirty years ago, Stanford Law Professor Ronald Gilson argued that business lawyers reduced inefficiencies in the transactional process as “transaction cost engineers.” Ten years later, Drexel Law professor Karl Okamoto posited that they serve as “reputational intermediaries,” comforting clients by ensuring that the information they receive is verified. And most recently Duke Law’s Steven Schwarcz concluded that the unique role of business lawyers is to reduce regulatory costs.
But to Kosuri, those explanations are a limited take on a business lawyer’s role. They fail to account for the role of a lawyer before a deal happens, or after a deal is made. And they limit the lawyer’s role to a purely quantifiable economic value.
In addition to their technical prowess, Kosuri argues, great business lawyers need to be counselors and leaders who bring their good judgment to the table.
Law schools are adept at teaching their students to “think like a lawyer,” he writes, but the traditional law school curriculum focuses on producing litigators, not business lawyers.
“Thinking like a transactional lawyer is different from thinking like a litigator,” he adds. “Most litigation is adversarial and backward looking, whereas most business deals are collaborative and forward looking. Yet for nearly 150 years, law schools have been using the same mode of education for both types of lawyers even though more than half of law graduates practice some sort of transactional law.”
Kosuri proposes a curriculum that recognizes three sets of skills with increasing sophistication: foundational, transitional, and optimal.
Foundational skills, such as reading contracts, research and drafting, and financial literacy, are the skills currently taught in law schools using traditional methods.
Kosuri argues that teachers of practice-oriented transitional skills, such as negotiation and risk management, should consider business case studies as a way to present problems to students.
“The business case study is a higher form of problem based teaching and forces students to engage in more active thinking than mere lectures do,” he writes.
Case studies are often based on real events, and they put students at critical points where they must make key decisions to help their clients, engaging students with the complexities of real-life practice.
But the skills that set great business lawyers apart, Kosuri explains, such as understanding business, understanding people, creative problem solving, and advising clients, are what he calls optimal skills. They’re best taught through clinical programs, like the Entrepreneurship Legal Clinic at Penn Law, which Kosuri directs.
“Live-client representations present the only forum in law schools that allow students to engage with clients confronting problems that are not neatly structured or constrained,” he writes.
At the ELC, students represent a variety of business clients, including nonprofits, start-up ventures, and established for-profit entities, and Kosuri has worked to integrate optimal skills into the students’ curriculum.
Working with real-life clients, students at the clinic have been involved with counseling founders to avoid pitfalls, negotiating and drafting agreements with an understanding of what terms really matter, and advising clients by providing the best solutions for their problems regardless of whether those solutions are rooted in the law — critical experience for students who want to excel as business lawyers in their careers.
And if law students have the opportunity to participate in dynamic business lawyering, Kosuri concludes, they have the chance to become great themselves.