November 2006 Issue
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Business And Commercial Litigation In Federal Courts, Second Edition

Reviewed by John Hartje, formerly Chief Counsel-Corporate Litigation, International Paper Company, and currently a partner, Howrey LLP.

Firm: Howrey LLP
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John Hartje  
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Business and Commercial Litigation in Federal Courts , published in 1998 by the West Group and the ABA Section of Litigation, was quickly recognized to be the most comprehensive and practical single reference work on its subject. When the annual pocket parts exceeded 1,800 pages, Robert L. Haig, the treatise’s Editor-in-Chief, decided it was time for the Second Edition, which adds 16 new chapters and 47 authors to the already-illustrious array of seasoned judges and practitioners who contributed to the First Edition.

It just isn’t feasible to capture the full scope and content of this eight-volume treatise (including a CD Rom with forms and jury instructions), comprised of nearly 100 chapters and over 9,000 pages written by scores of judges and litigators, in a single review – just listing the chapters and authors would fill the page! So I have focused on a group of new chapters that effectively comprise a primer for in-house counsel who try to avoid lawsuits and then, when litigation strikes, to minimize the drain on corporate resources while achieving effective results.

As soon as you unpack your new set, read Chapter 22, Discovery of Electronic Information, co-authored by The Honorable Shira A. Scheindlin, whose Zubulake decisions have been a resounding wake-up call for businesses, where the explosion of e-documents and underlying meta-data had rapidly outpaced the ability to access and organize that material. There could hardly be a better source to follow and cite on e-discovery issues than the judge who authored the seminal Zubulake case.

When you’ve caught your breath after inhaling Judge Scheindlin’s wisdom, you can dive into the six chapters described below. Then cap off your reading with Judge Harold Baer Jr.’s Alternative Dispute Resolution, which appeared in the First Edition as well.

Chapter 5, Case Evaluation, describes in detail how to perform substantive and quantitative case evaluations which, updated as circumstances warrant, will inform a company’s decision-making at each juncture of a case: What are our chances in a jury trial? Should we mediate? Should we settle and for how much? Along the way, the authors also address Sarbanes-Oxley implications of case evaluations, privilege issues and a lawyer’s disclosure obligations under FASB 5.

Chapter 54, Litigation Avoidance and Prevention, identifies some common-sense strategies to avoid disputes by carefully managing your business conduct (e.g., enforce sound internal policies and procedures) and suggests ways to defuse difficult situations (consider an apology, for example).

When lawsuits are thrust upon you, Chapter 55 provides Techniques for Expediting and Steamlining Litigation and carefully explores the dynamics of the three sets of relationships that can be the sources of resistance to faster and easier (and thus cheaper) litigation: between client and counsel, between opposing parties (and their respective counsel), and between the parties and the Court.

In Chapter 56, Litigation Technology, David Boies helps you to formulate a comprehensive plan to collect, store, review and categorize information electronically, and then to present it to maximum effect in federal courts that are equipped with sophisticated audio and video equipment.

Inside counsel should read Chapters 57, Litigation Management by Law Firms, and 58, Litigation Management by Corporations, together. Chapter 58 also alerts you to reserves requirements, audit letters, the role of in-house counsel with clients and the special considerations of legal staff as fact witnesses.

Each of the 96 chapters is organized and formatted similarly. A “Scope Note” tells you what the chapter does and doesn’t cover and cross-references the treatise’s chapters that address both excluded and related topics. A comprehensive and carefully-documented discussion of the chapter’s subject matter then follows. Relevant West Key Numbers are identified along with other source material. Checklists appended to most chapters are an invaluable tool for in-house counsel trying to keep up with their outside counterparts.

The first 60 chapters address procedural and strategic considerations which can apply to all forms of litigation. Urge your outside lawyers to read them. The final 36 chapters (including the new chapter, Director and Officer Liability) address specific substantive claims. They are as valuable to inside business counsel as they are to in-house litigators. In clear, concise language, the authors discuss the substantive law, as well as strategic and procedural considerations for both prosecuting and defending claims. No longer will you be stumped when your outside antitrust counsel mentions Illinois Brick (not construction material) or your patent lawyer tells you there’s a Markman hearing next week!

Business and Commercial Litigation in Federal Courts, Second Edition is truly one-stop shopping for in-house counsel.

Invest Canada
Sivin Tobin

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