‘Business and Commercial Litigation' fills gaps in federal practice mastery

A review by Senior Judge Milton I. Shadur of U.S. District Court for the Northern District of the expanded second edition of “Business and Commercial Litigation in Federal Courts,” a publication of Thomson West edited by Robert L. Haig of Kelley, Drye & Warren, New York City.

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Although it may be difficult for young (or even middle‑aged) lawyers to credit this, there was a time in living memory when it was possible to approach the Renaissance ideal in lawyering:

To be not only competent but expert (or near‑expert) across a wide spectrum of the legal universe in both substantive and procedural terms, and in both litigation and transaction practice.

Even more, that was possible without really having to worry seriously about carrying errors and omissions coverage.

For a number of reasons, including the sharply increased compartmentalization of the law and its practice, that ideal is no longer approachable.

For all of us who are less than near‑omniscient in that regard, a remarkable multivolume treatise – “Business and Commercial Litigation in Federal Courts” - is available to fill in the gaps, both substantive and procedural, in our knowledge.

That set's first edition received a glowing review in the Feb. 1, 1999, issue of the ISBA Bar News authored by my good friend and former colleague, the late Prentice Marshall.

From the vantage point of his years in the practice and as a former district judge par excellence, Pren began his review this way:

“'Business and Commercial Litigation in Federal Courts' is a crafted, up‑to‑date six‑volume work that should be at the hand of every lawyer who is faced with litigation in the state or federal courts, every federal trial judge, and every mediator or arbitrator of complex commercial disputes.”

That appraisal is just as true of the newly‑issued second edition of the work - so much so that today's reviewer is sorely tempted simply to dial in the rest of Pren's review.

But that would not at all do for a stellar work (for which its editor‑in‑chief, Robert Haig of the New York bar, deserves great credit) that has been enlarged from six volumes to eight, ascribable both to the updating and expansion of the original 80 chapters and to the addition of 16 new chapters.

A number of those are devoted to such substantive areas of law as director and officer liability, mergers and acquisitions, partnerships, commercial defamation and disparagement, commercial real estate, government entity litigation and - with a special bow to our new century - e‑commerce.

All of the chapters, both old and new, are authored by an extraordinarily distinguished group of lawyers and judges (199 of them!) whose curriculum vitae occupy 89 pages at the beginning of Volume 1 and read like Who' s Really Who in American Law.

Of course those resumes provide only circumstantial rather than direct evidence as to the quality of the authors' work product, rather than of the authors themselves, so that a real evaluation of the set requires a critical look at the text.

Any total immersion in over 8,900 pages of text is obviously impracticable for anyone who is not fully retired from the practice or from judging. Instead, an in‑depth dip into some chapters dealing with subjects already well known to the reviewer provides the optimum means of analysis.

As chance would have it, I have just authored for an upcoming issue of Litigation, the house organ of the ABA's Section on Litigation, an article on the subject of removal to and remand from federal courts.

Although the space limitations imposed by that journal have necessarily cabined both the length and the scope of detail of my piece, it has still created the opportunity for a careful and informed look at Chapter 9 of this set - an 86‑page treatment captioned “Removal to Federal Court,” by Senior District Judge Roger Vinson.

Unsurprisingly, that treatment of a complex subject is impeccable. It covers the entire field, providing both a sort of primer for the inexperienced lawyer and a thorough exposition for the experienced practitioner, and importantly including the identification and discussion of potential arcane traps of which a lawyer at any level of sophistication might otherwise be unaware.

And as in any topflight treatise, the discussion is replete with case law citations that make it a better place to start one's research (and on occasion to complete such research) than to go in the first instance to the system of electronic retrieval provided by Westlaw or Lexis.

That level of excellence is mirrored in every other chapter to which I have applied the acid test of comparing the treatise's treatment to what I have earlier found in my frequent research and writing of opinions about such complex subjects as issue and claim preclusion (Ch. 13), summary judgments (Ch. 27), court‑awarded attorney's fees (Ch. 48), sanctions (Ch. 50), employment discrimination (Ch. 78) and RICO (Ch. 80) - surely a representative sampling.

And what has just been said extends equally to the valuable teaching from experienced practitioners in such how‑to‑do‑it chapters as those devoted to case investigation (Ch. 4) and evaluation (Ch. 5), all aspects of discovery (Chs. 19‑24), jury selection (Ch. 31), opening statements (Ch. 34), cross‑examination (Ch. 36) and final arguments (Ch. 39), with the bread and butter aspects of those subjects being accompanied in each instance by the necessary useful citations to caselaw and other relevant authorities.

Just as Pren Marshall did with the first edition, at the end I come out of the same door I went in: This work's second edition can serve as an all‑important tool for everyone involved in any capacity in dispute resolution at the federal level.

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The eight hardbound volumes of “Business and Commercial Litigation in Federal Courts, Second Edition,” and one CD-ROM, are updated annually with pocket parts. For ordering information, call (800) 344-5009 or access west.thomson.com, referring to offer number 510225.