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Bar News - October 6, 2006

Book Review Stronger and Better: Business and Commercial Litigation in Federal Courts–Second Edition


       Admittedly, it was not a typical choice for a mid-summer vacation read—Business and Commercial Litigation in Federal Courts–2nd Edition. The books came in a shipping box—eight volumes, plus a packet with CD-Rom forms and a two-inch thick appendix of cases. Quite a library to bring to the lake.

It was a choice driven in part by deadline—I had done the review of the First Edition in 1999, and promised its editor-in-chief, Bob Haig, that I would renew my efforts this summer with the expanded Second Edition. So, my Rangeley, Maine, vacation was punctuated by examining each volume, reading a number of sections word for word, being drawn in for some time each early morning with the detail and strategies set out in this work. It is a remarkable effort, certainly comprising the cornerstone resource for practitioners of commercial litigation in the federal courts.

        Business and Commercial Litigation in Federal Courts–Second Edition is a major revision of the initial treatise, adding 16 new chapters to the 80 chapters in the First Edition. Many of the new offerings focus on cutting-edge issues—electronic discovery, e-commerce, litigation management and use of technology in the courtroom. The unique feature of this work is its combination of detailed procedural analysis with practice aides, checklists, and tactical advice for the practitioner. Each chapter sets out not only the nuts-and-bolts legal principles and case law underpinnings of the substantive area at issue—including extensive reference to additional sources, annotations, or commentary on the subject—but also offers practice tips and forms for use by the practitioner.

        The chapter offerings in this work combine both traditional procedural subjects of federal litigation (jurisdiction, removal, third-party practice, etc.) with chapters dealing with specific types of cases (employment litigation, antitrust, banking, energy, communications) resulting in a broad and interrelated treatment of the nature of federal commercial practice. Additionally, chapters are offered focusing on the skills and technologies which are foundations of successful trial practice (case evaluation, litigation avoidance and prevention, technologies for expediting and streamlining litigation).

        Each chapter is written by practitioners and judges with impeccable credentials and extensive experience. The Second Edition adds 47 new authors, bringing the entire complement to 199, many of these household names in our federal courts. We find U.S. District Court Judge Shira Scheindlin leading the chapter on electronic discovery, a topic which finds her decisions at the heart of this developing area; high-profile attorney David Boies writes on the use of litigation technology, and its evidentiary use in presenting evidence in our federal courtroom. The authors include Fellows of the American College of Trial Lawyers, leaders in the American Bar Association Litigation Section, and judges who are at the front line in our federal courts. It is a remarkable collection of presenters, recruited and assisted by Editor-in-Chief Bob Haig of the Kelley, Drye & Warren firm in New York. The coordination of the chapters, their interrelationship and support, and the overall editing and ease of use of the treatise is excellent.

        While reading, I found myself grabbing tips on document management in large cases, poring over standards for intervention applicable to a case on which daily messages arrived via Blackberry, tuned up on issues of “numerosity” and “commonality” on my new class-action case, and considered the intricacies of “clawback” versus “quick peek” agreements in managing privilege reviews of electronic discovery. It was not my usual vacation fare of following author James Patterson’s detective, Alex Cross, in his pursuit of one diabolical villain after another, but it was interesting and valuable.

        The Second Edition comes with an extensive body of forms on CD-ROM, a useful appendix of cases, and will be kept up to date, as was the First Edition, with pocket parts. It is extensively cross-referenced to West’s Key Number Digest, the A.L.R. Library, and other sources. It is probably the best place to start research on topics involving federal commercial litigation practice and this treatise is an enormously valuable addition to any commercial litigator’s library.

        Published by Thomson West, the set costs $960 and can be obtained through All royalties from sales of this treatise and its annual Pocket Parts go to the ABA Section on Litigation.


Bruce Felmly is a trial lawyer and co-chair of the Litigation Department at McLane, Graf, Raulerson & Middleton, Professional Association. He is a Fellow of the American College of Trial Lawyers and a former president of the New Hampshire Bar Association. He can be reached at



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