Business and Commercial Litigation in Federal Courts, Second Edition
Edited by Robert L. Haig
Reviewed by Michael D. Zimmerman
Commercial litigation is a vast arena. In the course of practice, one is constantly confronted with new issues, often legal but perhaps more often practical. The many tactical and strategic questions that arise are every bit as subtle as any the courts address, and the answers appropriate to a particular situation are far less certain because of the varying and complex factual contexts in which they are encountered. An experienced litigator will have plumbed the depths of a number of substantive areas and will have addressed many practical problems of litigation tactics and strategy. However, no matter how sage, any such lawyer will find this eight volume treatise invaluable for its scope and depth, and for its down to earth practicality.
As might be expected from its title, this treatise treats the “how to” of the development of a federal court commercial or business case, from the decision to bring suit to the collection of the judgment after appeal. As might not be expected, the treatise includes in-depth chapters devoted to substantive areas common in federal commercial and business litigation. To me, the special achievement of this set, what makes it unique, is the wise counsel the authors offer throughout on practical matters of tactics and strategy, including day-to-day management of the litigation process.
The organization of the volumes is intuitive. The first 60 chapters – most of the first five volumes – are organized around the chronology of a case, beginning with jurisdiction and venue, running through investigation of the case, preparation of pleadings, removal, all aspects of discovery, motion practice, pretrial, jury selection, all aspects of trial, jury instructions, remedies and damages, post-trial motions, attorney fees, sanctions, appeals, and enforcement of judgments. Also included are chapters addressing litigation management by law firms and by corporations, including useful supporting technologies, as well as chapters addressing ethical issues and civility concerns that can be critical in such litigation.
The remaining 36 chapters – more than three volumes – treat discrete areas of substantive law, but always with an eye to the practicalities of how cases in these areas may be shaped and presented. Included in each chapter is a discussion of potential defenses, procedural issues unique to the area, sample allegations for a complaint and answer, jury instructions, and practice checklists. Among the areas addressed are antitrust, securities, officer and director liability, mergers and acquisitions, professional liability, banking, communications, patents, trademarks, copyright, labor law, employment discrimination, ERISA, products liability, theft of business opportunities, competitive torts, commercial defamation and disparagement, governmental entity litigation, energy, environmental, and e-commerce.
As I browsed these books, more than once I found a discussion directly relevant to an issue I currently face in litigation. And in each instance, the clearly written text raised issues that deepened my consideration of the question and gave me fresh insight. Seldom have I read a set of books that is as practical and at the same time as scholarly and subtle in its analysis of the issues, a tribute to the fact that the authors are deeply experienced in business litigation.
I found intriguing Chapter 4, “Investigation of the Case.” It is extraordinarily detailed in addressing the utility of, and ways of performing, investigations. Issues addressed include finding a reliable investigator and contractual and ethical guidelines for retention, planning for and controlling the investigation, potential sources of information, forensics, who should be present when potential witnesses are interviewed, whether to record or preserve notes of interviews, the legality and wisdom of making surreptitious recordings, performance of searches for assets, and searches of trash.
Another section that I found particularly useful is Chapter 5, “Case Evaluation.” It suggests an analytic structure for evaluating the strengths and weaknesses of a case. Included are sections on estimating damages, determining client objectives and shaping client expectations, and the respective roles of client, in-house counsel, and outside counsel in the evaluation, both initially and as the case develops. The strengths and weaknesses of quantitative analysis are discussed at length. Use of this structured approach to thinking about a case both before it is brought and as it moves along certainly would go a long way to assuring that the client and their trial lawyer are on the same page, and that client surprises are avoided.
Related to the topic of case evaluation is Chapter 30, “Settlements.” Most lawyers have intuitively developed approaches to settlement. That intuitive approach would almost certainly be enhanced by visiting this comprehensive discussion periodically, along with the chapter on “Case Evaluation.” Included are discussions of how to elicit facts relevant to determining the client’s objectives and alternatives, how to bring the client along, approaches for dealing with insurance carriers, and the necessity for assessing and reassessing the case as it develops, as well as discussion of factors relevant to the timing of settlement discussions. The potential for ADR techniques to facilitate settlement is addressed, along with tactical and strategic approaches that can be used in negotiation or mediation. Finally, there is an extensive treatment of settlement agreements, including a laundry list of possible provisions covering everything from nonsettling parties, confidentiality, collection, covenants not to sue to the enforcement, and the voiding of settlement agreements.
In the area of trial preparation, I found timely and comprehensive Chapter 22 on “Discovery of Electronic Information,” authored by the Honorable Shira Scheindlin of the Southern District of New York and Jonathan Redgrave. The discussion of the duty of the client to preserve electronic data, and of counsel’s obligation to understand the client’s data storage and to guide the client in fulfilling its obligations to the court, is one that is essential if client and counsel are to avoid the harsh sanctions that may be imposed for failures to preserve or produce electronic documents. Also valuable are sections on the potential locations and sources of electronically stored data, on metadata, on prelitigation document retention strategy for clients, on implementing litigation holds, and on spoliation.
As a former appellate judge, I found particularly good the 175 page chapter on “Appeals to the Court of Appeals.” Every appellate court is somewhat unique, and the federal courts of appeals are no exception. This chapter does a fine job outlining the occasionally arcane rules surrounding these appeals. But more fundamentally, the art of persuasion, the strategies and tactics that make for winning – and losing – arguments, are common in all appellate courts. The candid discussion of the appellate decision making process, of what appeals to judges and motivates them to decide in favor or against a position, within the range permitted by the law, rings true to my experience. And the section on standards of review, and how to formulate an appellate strategy in light of those standards, is one many appellate judges wish advocates who appear before them would read. Standards of review doom any number of appeals from the start. They should be taken into account in making the decision to appeal, and are critical in tailoring the client’s expectations of what can realistically be achieved.
This treatise is a unique venture. It is a joint project of the ABA Section of Litigation and West, now Thomson-West, designed to put together a practical, in depth treatise on business and commercial litigation in federal courts. The first edition in six volumes was published in 1998. Robert L. Haig served as editor and brought together the authors, each of whom wrote a chapter on an area in which they are expert. Haig is a distinguished litigation partner with the firm of Kelley Drye & Warren in New York City who has written broadly in the field. The authors donated their time and work product, and all royalties from the sale of the treatise go to the ABA Section of Litigation. The first edition quickly earned a reputation as a superb resource. Developments in commercial litigation soon made it clear that a second edition would be appropriate. Haig again agreed to serve as editor, and almost all of the initial authors agreed to update and expand their sections. Additional authors were recruited to address new subjects.
The second edition has 199 authors, including 17 federal judges, drawn from the more recognized and accomplished members of the trial bar and bench. They include David Boies, Warren Christopher, Benjamin Civiletti, N. Lee Cooper, Patrick Lynch, the Honorable Margaret McKeown, John McElhaney, James Quinn, Patricia Refo, the Honorable Shira Scheindlin, Evan Tager, Jerold Solovy, Robert Warren, and Richard Wiley, to name a few. This new edition is substantially expanded. It is now eight volumes, up from six, and includes a separate appendix with tables of jury instructions, forms, laws and rules, as well as full citations of the cases discussed in the treatise in alphabetical order, and a CD containing much of the information in the appendix. The appendix and CD will be replaced yearly.
This is a treatise that any lawyer who practices in the area of business and commercial litigation will find invaluable. It is designed for the federal court practitioner, but much of it is equally applicable to the state court practitioner. The profound practicality of the materials, and their discussion of tactics and strategy, should make it a resource of first resort for any litigator, young or old.