An edited version of the below article was published in the King County Bar Bulletin in December 2006. Below article © Phil Cutler 2006; published version © King County Bar Association 2006.
BUSINESS AND COMMERCIAL LITIGATION IN FEDERAL COURTS, SECOND EDITION (Robert L. Haig, Editor-in-Chief)
Published by ABA Section of Litigation and Thomson/West, 2005
Review by Phil Cutler
Business and Commercial Litigation in Federal Courts, Second Edition (ABA Section of Litigation and Thomson/West, 2005), is a unique, comprehensive, nine volume roadmap to commercial litigation practice, combining substantive law with procedure, trial advocacy and practical advice. It expands significantly on the six volume First Edition, published in 1998. Although the book emphasizes federal court practice, readers will find its content useful as well in arbitration and state-court litigation, particularly in states, like Washington, where trial court rules generally parallel the Federal Rules.
Editor-in-chief Robert Haig, a distinguished commercial-case trial lawyer with Kelley Drye & Warren in New York, has once again assembled an outstanding cadre of 199 nationally-renowned commercial litigators and judges to author the various chapters. As only one example, the 78-page chapter on e-discovery is co-authored by Southern District of New York District Judge Shira Scheindlin, author of the benchmark Zubulake opinions on e-discovery. As with the First Edition, members of the Seattle bar and judiciary are among the authors: Western District of Washington Chief Judge Robert Lasnik (Responses to Complaints); David Binney, Fredric Tausend and Mark Wittow (Judgments); David Burman (Court-Awarded Attorneys’ Fees); and 9th Circuit Judge Margaret McKeown (Jury Conduct, Instructions and Verdicts and Court-Awarded Attorneys’ Fees).
Like the First Edition, the Second covers all aspects of a commercial case from investigation through resolution, by judgment on motion, trial/arbitration or settlement. In addition to chapters dealing with the substantive and procedural mechanics of litigation, it includes numerous substantive law areas, such as agency; antitrust; business torts; employment discrimination; environmental claims; ERISA; insurance; labor; partnerships; patents, trademarks and copyrights; product liability; professional liability; RICO; and warranties – and industry-specific areas such as banking; bills, notes and letters of credit; commercial real estate; construction; and energy;. The treatment of substantive legal areas and industry-specific areas is all the more useful to the practitioner by such chapters’ tie-back to relevant issues more comprehensively addressed in other chapters.
The Second Edition not only carries forward all 80 chapters from the First Edition – all with new, updated content – it adds 16 new chapters, reflecting a number of areas that have dramatically increased in importance since publication of the First Edition, such as case evaluation; e-discovery; e-commerce; broker-dealer arbitration; litigation avoidance and prevention; litigation management by law firms and by in-house corporate counsel; litigation technology; litigation with government entities; liability of directors and officers; mergers and acquisitions; and commercial defamation and disparagement.
Each chapter begins with a set of on-point research references relevant to the topic. The chapter author then proceeds with a detailed narrative comprehensively addressing all relevant issues, with complete citations to controlling and other relevant authority, and concludes with a set of well thought-out checklists and forms. Throughout each chapter are textual and footnoted cross-references to other chapters, substantive and procedural, that have a bearing on the topic.
The book’s most unique feature is the authors’ artful way of showing the interplay between procedural rules and substantive law and how the successful commercial litigator identifies client objectives and adjusts her strategy to meet the inevitable pitfalls that develop over the course of a lawsuit. Where the practitioner has more than one course of action available, the authors are not shy about offering their observation of the most appropriate action to take. More than just book-learning, the Second Edition offers the reader the depth of real-life litigation experience that only comes from working up and trying commercial cases.
Since this issue of the Bar Bulletin focuses on ethics, the chapter on Ethical Issues in Commercial Cases (Chapter 59) deserves special emphasis. It deals with the array of ethical issues confronting the litigator in a commercial case, from commencement of the action (diligent, zealous and competent representation), through motions and hearings (candor to the tribunal; disclosure of adverse authority), discovery and trial preparation (compliance with discovery; inducements to potential witnesses; ex parte contacts with current and former employees of adverse parties; contacts with experts), trial (contact with jurors; trial publicity; jury argument), settlement (aggregate settlements and limited funds; simultaneous negotiation of settlement and fees), and other important issues (e.g., disqualification issues, conflicts, joint representation and joint defense arrangements). The chapter’s 20+ checklists and forms will help the commercial-case litigator deal with these important issues professionally…and ethically.
Each set of the Second Edition is accompanied by a CD containing all of the compendium’s thorough and well-done checklists, forms and jury instructions – over 500 pages in all. They are downloadable and thus manipulable for the practitioner’s particular case. Once having found a practice aid on-point for the case, one need only open the folder for that chapter and click on the desired document, which carries the same section designation as in the hard-cover book. While the CD contains a table of contents listing all of the practice aids, it would be more useful if the table also identified chapter titles. Such a document with a hyperlink to the practice aids would be even better.
The soft-cover index, which will be replaced annually when pocket-part updates are issued, contains a complete table of cases cited in the book and a good index to covered topics, including separate headings for forms, checklists and jury instructions.
This is a must-have compendium for any lawyer handling a commercial case. Solo- and small-firm litigators, who frequently do not have experienced “seniors” readily available to consult, and lawyers without substantial experience, will find this resource especially valuable. Buy this book.