Commercial Litigation in New York State Courts (3rd Edition)

Thursday, September 1, 2011 - 01:00
Mark Morril
Stephen Fishbein

Stephen Fishbein

The expanded six-volume third edition of Commercial Litigation in New York State Courts updates and improves an already important and comprehensive treatise for practitioners of all levels of experience. The first edition, published in 1995, consisted of three volumes and quickly became a much-used resource for litigators in New York State. The treatise's value was enhanced by the addition of twenty-one new chapters to the second edition, published in 2006. With nineteen new chapters, the third edition builds upon the previous editions' thorough and practical approach by providing extensive treatment of both the procedural and substantive law of commercial litigation in New York State.

In his foreword to the third edition, Robert L. Haig, the editor-in-chief, explains that the goal of the third edition is to reflect the evolution of commercial litigation by presenting the "interplay between the rules of procedure and substantive law." The treatise accomplishes this through a careful arrangement and analysis of all the subjects a commercial litigator will need as to pursue a case from its initial stages through conclusion. Individual chapters addressing emerging issues such as e-commerce and information technology litigation are particularly useful guides for the new concerns of litigators.

The new edition is comprised of 106 chapters written by 144 respected attorneys and judges. Its nineteen new chapters cover areas that have recently gained importance in commercial litigation, including: Comparison with Commercial Litigation in Federal Courts; Coordination of Litigation Within New York and Between Federal and State Courts; Sealing of Court Records; Litigation Avoidance and Prevention; Crisis Management; Litigation Management by Law Firms; Litigation Technology; Civility; Employment Restrictive Covenants and Other Post-Employment Restrictions; Not-For-Profit Institution Litigation; Health Care Institution Litigation; White Collar Crime; the Interplay Between Commercial Litigation and Criminal Proceedings; Privacy and Security; Consumer Protection; E-Commerce; Information Technology Litigation; CPLR Article 78 Challenges to Administrative Determinations; and Commercial Real Estate.

The treatise begins with a chapter by Chief Judge Jonathan Lippman on the past and future of the Commercial Division. He outlines the history of the Commercial Division, which was created in 1995 and grew from six court parts to a total of twenty-five today. Reflecting upon the success of the Division, Lippman encourages New York courts to remain committed to efficiency and expertise in keeping with New York's preeminent position in the business community. The new edition is a worthy companion and guide to the case law that has emerged from these highly regarded courts and will assist both courts and practitioners attain the high level of expertise advocated by Chief Judge Lippman.

The third edition's chapters follow the progression of commercial litigation beginning with jurisdiction and venue and continuing through pleadings, discovery, trial and enforcement of judgment. Many chapters contain a discussion of useful strategies and tactics written by expert practitioners. Each chapter is strengthened by thorough citations to pertinent case law and statutes. Additionally, many chapters have helpful checklists, jury charges, and forms, which are also included on a separate CD-ROM.

Predictably, a large portion of the set is devoted to discovery. With individual chapters addressing document discovery, interrogatories, and requests for admissions, the section is a comprehensive resource for this important stage of litigation. For example, the document discovery chapter has several helpful suggestions for the discovery of electronic records, with sections on drafting requests and responding to requests, along with analysis of the development of electronic discovery rules under New York law.

Trials are addressed in another large segment of the treatise. Nine separate chapters written by the late Stephen Rackow Kaye were revised and expanded by members of his firm, Proskauer Rose, for the new edition. This section moves from opening statements to jury instructions and verdicts with helpful strategies and practice tips peppered throughout the text.

The "Case Evaluation" chapter tackles the procedural issues of case evaluation in a systematic and informative manner. The author, Alan I. Raylesberg of Chadbourne & Parke, LLP, gives advice on when a case should be taken and how to perform ongoing case assessment, along with advice on many other topics. This chapter will help in-house counsel manage litigation and provide insight for outside counsel into the challenges faced by in-house counsel.

Another helpful chapter covers CPLR Article 78 litigation, which was written by Judge Victoria A. Graffeo of the New York Court of Appeals. Article 78 has become an important tool for commercial litigators to address their client's concerns arising from administrative decisions. This chapter outlines the standards governing judicial review, the limitations periods, common defenses and various considerations for the appeals process. It is a good resource due to its comprehensive treatment of Article 78, which prompted former Chief Judge Judith S. Kaye to praise this chapter as "a gem."

Readers will also find the section on the overlap between criminal proceedings and commercial litigation instructive. With increased criminal enforcement of business crimes at both the state and federal level in recent years, even practitioners who restrict their practice to civil matters would be well advised to understand the potential for spill over into criminal proceedings. On substantive criminal law issues, the treatise's section on New York State commercial crimes contains an excellent and thorough treatment of the Martin Act, one of the primary tools of state securities regulators. In addition to a technical analysis of the Martin Act, this section discusses the powers of the different state regulators who rely on the Martin Act and how these powers are typically exercised in practice. Anyone whose practice touches the Martin Act will likely find this background very useful. Additionally, like many other chapters, the criminal law section provides an extensive and helpful array of the sample forms involved in criminal cases.

For the corporate general counsel or other senior lawyer who counsels corporate management from within the company, a prime virtue of this treatise is the enormous scope of topics addressed, coupled with a "cut to the chase" focus.The issues corporate counsel confront on a daily basis do not fit into neat boxes; this treatise is an important desk reference for general counsel and senior lawyers who are called upon to assess complex problems in a fast-moving environment.

Sections of the volumes dealing with both substantive legal topics and important legal management areas give the in-house practitioner practical advice to support business counseling that frequently demands the right answer - or at least the right initial direction - under exigent circumstances. The distinguished roster of authors gives comfort that the legal summaries and advice presented are based on insightful knowledge and the experienced judgment of a leading practitioner in each field that is addressed.

The chapter (17:26 et seq. ) on pre-judgment attachments under New York law is a case in point. In just 34 pages, the chapter succinctly lays out the jurisdictional and constitutional underpinnings of the attachment remedy and explains each of the grounds for an attachment provided in Article 62 of the CPLR. The significant case law is summarized and, most importantly, interspersed throughout the text (and clearly flagged for attention) are important "Practice Tips" that will help guide the decisions that need to be made. There is a good discussion of the type of proof that has succeeded in attachment cases, as well as examples of proof courts have found inadequate to support the remedy. The Practice Tips also include a discussion of the cost-benefit trade-offs to consider before seeking an attachment and an important cautionary note regarding the availability of damages to a party whose property is wrongfully attached. The chapter likewise will be useful to a corporate counsel who must defend against an attachment motion or whose company's property has suffered an ex parte attachment.

Equally of interest to the corporate law department practitioner are the chapters dealing with management topics such as the articles on litigation technology, litigation management and crisis management. While the more experienced practitioner probably will have some familiarity with the topics addressed, even for those lawyers, the chapters pull together in a useful way the multifold business and legal issues a company's lawyer will need to address, typically under great time pressure. For newer general counsel or less-experienced in-house practitioners, the business and legal practice management chapters provide a comprehensive introduction to virtually all of the real world issues that arise in a corporate practice.

For example, the chapter on litigation technology provides a short but useful overview of document review technology and case management platforms with references to more comprehensive sources of information. The crisis management chapter provides a sophisticated overview of the role of counsel in the management of public controversy that may precede or accompany high-profile litigations. The chapter includes real world, timely examples of cases that have received recent media attention, some well-managed and some not. Here again, there are many useful cross-references to other sections of the treatise and external sources to guide the practitioner who may need more guidance as a situation evolves.

In sum, practitioners in both law firms and corporate law departments will find the updated treatise's extensive treatment of both procedural and substantive issues to be an invaluable resource that will guide them through the intricacies of commercial litigation in New York.

More information about Commercial Litigation in New York State Courts, Third Edition is available by calling West at 1-800-344-5009 or online at