Book Review Commercial Litigation In New York State Courts, Second Edition

Sunday, January 1, 2006 - 01:00

Robert L. Haig, Editor-in-Chief Reviewed by Michael Kreitman, Associate Counsel, Federated Department Stores, Inc.

I have the pleasure of reviewing the Second Edition of Commercial Litigation in New York State Courts . For those not familiar with this work, the first edition, published in 1995, consists of three volumes and is widely recognized as a key reference tool on commercial litigation in New York State. This earlier work was written by a volunteer group of 63 New York attorneys and prominent judges, working under the leadership of Robert Haig of Kelley Drye & Warren LLP, who served as Editor-in-Chief.

The second edition is an expansion from the first edition, reflecting the significant changes in commercial litigation in New York State over the past nine years. Twenty-one new chapters have been added as well as updates and revisions to the chapters in the first edition. In total, 121 distinguished attorneys and judges volunteered their time to produce this work.

As with the earlier edition, the second edition is a comprehensive analysis of substantive and procedural issues in New York commercial litigation. But the Second Edition includes key developments in litigation that are of special concern to outside litigation counsel and in-house counsel alike, such as the chapter on Electronic Discovery that thoroughly reviews New York State law on this topic. Other topics include jurisdiction and venue, class action, and discovery and trial practice, as well as discussion about specific substantive areas such as sale of goods, agency and partnerships, right of privacy and commercial defamation.

Commercial Litigation in New York State Courts has unique value both for outside counsel and the in-house lawyer. This work provides information that is essential to the counseling roles that each plays and as such, it is a key reference tool to help manage client relationships.

For example, the Case Evaluation chapter treats a lawsuit as a business problem and identifies the many non-substantive issues that are of paramount importance to in-house counsel. This chapter talks about the importance of, and provides guidance on, (1) early and ongoing case assessment and steps to effectively accomplish this task, (2) identification of the client's business goals, (3) creating and regularly updating a cost-benefit analysis, (4) the appropriate time to consider mediation or some other alternative dispute resolution tools, and (5) preparing a decision tree analysis so litigation risks can be fully appreciated and an informed settlement decision made.

What really struck me about the Case Evaluation chapter is how accurately it captures factors that are important to the in-house lawyer managing litigation, and the information that outside counsel is expected to provide. In fact, this chapter should be required reading for outside litigation counsel who want to understand how in-house counsel view litigation and the challenges faced by in-house counsel with business clients, who may have difficulty separating emotions from objective business issues.

The Litigation Management by Corporations chapter also contains extremely practical guidance for the in-house lawyer involved in the complex roles of managing relationships with outside counsel, protecting the corporation from legal exposure and monitoring litigation fees to enhance shareholder value. It also advises outside counsel on factors that are of importance to in-house counsel and which will surely be the subject of discussion between lawyer and corporate client.

Accurately noting that the traditional relationship between corporate legal department and law firm has given way to new relationships, this chapter provides pointers on key aspects of litigation management. For example, the chapter discusses policies and procedures that corporations should have in place governing the selection of, and relationship with, outside counsel. It discusses the benefits of having an approved counsel list that notes the expertise of each firm and discusses how many law firms corporations should be actively using at any one time.

This chapter discusses the importance of evaluating outside counsel to ensure that cost effective, quality services are being provided. This is achieved, in part, by setting corporate litigation goals, clearly communicating these goals to outside counsel and then evaluating outside counsel against these goals. Other methods to evaluate outside counsel are discussed such as doing a post mortem when a case is over and using a performance review method to evaluate individual lawyers.

Finally, there is a section in this chapter on managing litigation costs that addresses such items as alternative billing arrangements, case staffing, avoiding duplicative legal research, preparing a litigation budget, and corporate policies on disbursements that is a "must read" for the in-house lawyer who wants to control costs and expenses. In short, it stresses the importance of an open and comprehensive dialogue between outside and in-house counsel to explore the myriad of ways to manage litigation so as to produce good results at a cost effective price tag.

There are also very informative chapters on substantive areas that in-house counsel will want to regularly consult when counseling business clients. For example, there is a Construction Litigation chapter that in-house counsel might refer to when counseling business clients on drafting construction contracts, handling disputes over contract terms, declaring a contractor in breach, or dealing with questions under the arcane New York lien law. The chapter on Misappropriation of Trade Secrets discusses steps a corporation may take to protect trade secrets and evaluate a lawsuit based on misappropriation of confidential information. The Sale of Goods chapter is instructive on such topics as rights, obligations and remedies in the event of a contract breach - information in-house counsel will want to review when charting a course of action with the business client embroiled in a contract dispute.

These and other chapters on Agency, Partnership, Warranties, Secured Transactions, Franchising, and Collections all provide a valuable reference tool on substantive legal areas that in-house counsel is expected to know, or access quickly, in order to effectively counsel the business client.

In sum, Commercial Litigation in New York State Courts is an excellent reference tool for outside litigation counsel and in-house counsel. It provides both very thorough and detailed analysis on substantive and procedural aspects of New York law as well as useful information that is important to the relationships outside and in-house counsel have with each other and their business clients.

To order a copy of the treatise, call (800) 344-5009.