Bar News - April 19, 2013
Book Review: A Practical Reference for Federal Court Litigators
By: W. Scott O’Connell
Business and Commercial Litigation in Federal Courts, (West Publishing, 3rd edition, Robert L. Haig, Editor-in-Chief)
In the foreword to this exceptional resource, Robert L. Haig ambitiously posits: "This publication is unique in the legal literature. There is no other book on commercial litigation in federal courts. There is also no other book that combines in depth treatment of federal civil procedure with substantive law in the areas most commonly encountered by commercial litigators. Even more unique, however, is that again and again throughout this work, our authors have pointed out the interplay between the rules of procedure and substantive law."
These promises are more than kept over the course of this treatise’s 11 volumes. It is a rich, multilayered endeavor that every federal commercial litigator would do well to have at ready reach.
The strength of this work clearly derives from its 251 principal authors. Among them are some of the most respected names in their areas of specialization. (Disclosure: Nixon Peabody partner David Tennant coauthored the chapter, Appeals to the Court of Appeals, and its former chairman, Harry Trueheart, wrote the chapter on agency). The authors also include 22 federal judges.
The star power is well deployed. To take one of many examples, who better than Judge Shira Scheindlin to coauthor a chapter titled Discovery of Electronically Stored Information?
The breadth of this work is impressive. The first five volumes conventionally track the sequence of litigation, from initial considerations regarding subject matter and personal jurisdiction, to initial pleadings, discovery, motion practice, settlement and alternative dispute resolution, trial, post-trial practice, and appeals.
The next six volumes cover substantive topics. The mainstays of federal civil practice, such as securities, antitrust, ERISA, intellectual property and employment discrimination, are all well covered. So, too, are less prominent federal practice areas, including commercial real estate, franchising, sports and entertainment. There are several excellent chapters covering the waterfront in the area of white collar practice, including money laundering, the Foreign Corrupt Practices Act, and export controls. Two chapters address emerging issues in technology-related litigation.
Many chapters take on issues involved in the day-to-day management of litigation, including litigation avoidance and prevention, crisis management, and litigation technology. There is a separate chapter on pro bono litigation. Ethical issues receive extensive treatment. And, while there is the obligatory chapter on sanctions, there is also a chapter titled, Civility.
The premise of that particular chapter can hardly be disputed: "Those who are perceived as the best litigators in commercial litigation are usually – by reputation and in fact – the most courteous and professional in their dealings with other attorneys." Yet, dealing with an uncivil opponent can be as much of the fabric, and challenge, of a case as is its procedural and substantive components. To equip the litigator confronting this situation, this chapter – like the others in the book – presents four pages of "practice checklists" – steps to consider in addressing civility issues.
Therein lies the ultimate value of this treatise. It takes a highly practical approach to its subject. In addition to practice checklists, chapters include discussions of strategies, client counseling techniques, hundreds of forms, and – for many chapters – sample jury instructions.
Indeed, the content is so rich that busy practitioners may find it a challenge to access it to maximum benefit. Although there is a detailed index, like many multi-volume treatises, this one lacks a single detailed table of contents covering all the chapters in all of the volumes. That shortcoming, however, is more than overcome by hundreds of footnotes cross-referencing other parts of the treatise. This relatively unique feature – surely the product of a monumental effort – meaningfully integrates the enormous amount of material in the 11 volumes.
To produce a comprehensive and hands-on treatment of all the disparate elements involved in litigating a commercial case in federal court is an ambitious undertaking. This unique and highly useful treatise meets the challenge.
Scott O’Connell is a commerical litigator and deputy chair of the litigation department at Nixon Peabody.