Book Review

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Business and Commercial Litigation in Federal Courts (Thomas West, Third Edition), edited by Robert L. Haig

Reviewed by Susan L. Shin, Esq.

By the time I started practicing in 2001, all my legal research was done electronically. Yet I did not hesitate in agreeing to author a "book review" of Robert L. Haig's treatise, Business and Commercial Litigation in Federal Courts (Thomas West, Third Edition), having found its prior digital editions useful in the course of conducting electronic research on various topics over years of litigation practice. But then an enormous box arrived one afternoon, and I panicked a little, vaguely recognizing the strange contents to be a twelve-volume set of hard-cover books--with gold embossing--the kind we were half-heartedly taught to use in law school. How would I find the time to read these volumes in the next six months while keeping up with my caseload? To my surprise, however, I have reached for this treatise at least twice a week since it arrived: it has quickly become my time-saving, trusty advisor. And the sections I have found most useful are not the ones I would have ever thought to research on Lexis or Westlaw.

To be clear, this publication is far from a clunky academic treatise laying out the Federal Rules of Civil Procedure and referencing interpretive cases and authority. Rather, it is an incredibly practical compilation of the experiences and insights of 251 of the country's most distinguished practitioners and judges, who provide 130 chapters of step-by-step guidance, on not only procedure, substantive law and trial advocacy, but also on strategic and tactical considerations for both plaintiff and defense counsel. Despite its numerous and varied topics, and multiple authors, the compilation is stylistically and substantively cohesive and logically organized--an impressive achievement by a gifted editor.

First and foremost, the treatise is practical and user-friendly. Each chapter includes a section on scope and on in-depth strategy considerations and analyses, a detailed table of contents for easy reference, and extensive citations to authority and cross-references. Each chapter also includes practice aids and checklists, such as checklists for allegations, defenses, sources of proof and internal investigations, as well as essential, time-saving litigation forms and pattern jury instructions. A CD-ROM containing the checklists, forms and jury instructions is included with the hard-copy set for easy copying and customization.

Second, the treatise is refreshingly modern. It provides cutting-edge guidance on substantive issues that plague today's commercial litigator. For example, the treatise includes informative and instructive chapters on Internal Investigations; Crisis Management; Regulatory Litigation with the SEC; Consumer Protection; Licensing; Privacy and Security; Money Laundering; the Foreign Corrupt Practices Act; the False Claims Act; and Litigation Technology.

Even basic litigation topics such as pleadings, discovery, motion practice, and trials come alive with the varying views and perspectives from some of the most seasoned litigators and judges. In the last six months, many issues have arisen in my practice that led me to refer to the treatise again and again. For instance, strategic considerations in Chapter 10 (Comparison with Commercial Litigation in State Courts) and Chapter 11 (Removal) were particularly enlightening and helpful in deciding whether it made sense to remove a case from a state court judge in the New York Supreme Court, Queens County, who seemed unsympathetic to my adversary's case. For the same case, which was ultimately removed, Chapter 3 on the Enforceability of Forum Selection Clauses and related strategy considerations provided a useful perspective I had not previously considered. More recently, I relied on Chapters 13 and 15, which discuss Consolidation of Separate Actions and Coordination of Litigation in State and Federal Courts, and were useful in developing a powerful and efficient strategy to defend a client from seven separate actions filed in various state and federal courts that involved common questions of law and fact. For that same case, Chapter 8's (Responding to Complaints) discussion on the practical and strategic considerations of motions to dismiss, affirmative defenses and counterclaims gave me useful and insightful advice and perspective.

Third, the treatise provides clear, measured guidance on some of the most difficult and thorny issues faced by litigators. The chapters on discovery are particularly well-done. For instance, Chapter 23 provides practical instruction on every aspect of deposition procedure and conduct, including the myriad of challenges of preparing and defending witnesses under Fed. R. Civ. P. 30(b)(6), and the effective use of deposition testimony down the road at trial. Chapter 25, which discusses ESI Discovery, and is co-authored by the prominent trailblazer in the field of e-discovery, Judge Shira Scheindlin, includes commentary on the current doctrine, duties to preserve, claims of spoliation, and practical guidance and considerations, among other matters. Chapters 26 and 27, which discuss Interrogatories and Requests to Admit, provide refreshing insights on how to maximize the benefit of these potentially powerful discovery tools that too often are only an additional burden on the process, with little yield. Chapter 28 has an extensive and helpful discussion on expert discovery, including finding, selecting and managing experts, reports and depositions of experts, and pre-trial Daubert considerations.

Finally, I would be remiss in not praising the treatise's thoughtful and pragmatic attention to law practice issues that have little to do with federal procedure, substantive law or the courtroom. For example, Chapter 47 (Alternative Dispute Resolution), authored by the late Judge Harold Baer, provides a thorough review of the practice of mediation and arbitration. Likewise, Chapter 33 (Settlements) contains remarkably practical discussions on dealing with insurance carriers, conducting litigation risk assessments at the outset of the representation, timing of settlements, and techniques to achieving a favorable outcome outside the courtroom.

In this regard, this treatise further recognizes that a growing number of litigators practice in-house, hired by corporations to manage litigation, an increasingly common aspect of doing business. With this in mind, Chapter 58 is devoted entirely to Litigation Avoidance and Prevention, while Chapters 60 covers Techniques for Expediting and Streamlining Litigation. Also excellent are Chapters 62 and 63, Litigation Management by Law Firms, and Litigation Management by Corporations, respectively, which explore the realities of and approaches to budgeting and managing the ever-increasing costs of litigation.

These are just some of the highlights from my perspective. Litigators at all levels of experience will find this compilation invaluable in its readability, practicality and usefulness. For those who are still intimidated by the hefty physical volumes, the complete treatise also is available online through Westlaw. But from one practitioner to another, nothing replicates the experience of having the full twelve-volume set of wisdom, experience and authority at your literal fingertips. Buy the "book": the investment is worth every penny.


Susan L. Shin is a Partner in the New York office of Arnold & Porter LLP. She practices complex business litigation on behalf of financial institutions and corporate clients in litigated disputes in state and federal courts and arbitrations. Ms. Shin also defends institutions and individual clients in investigations and enforcement proceedings conducted by various state and federal government agencies. Ms. Shin serves on the Board of Directors of the Asian American Bar Association of New York.

The preceding book review was published in the Fall 2014 edition of the Asian American Bar Association of New York Advocate. For more details, please visit:
http://c.ymcdn.com/sites/www.aabany.org/resource/resmgr/AABANY_Advocate/Fall_2014_v7.pdf

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