Book Review: Business and Commercial Litigation in Federal Courts
by Timothy W. Mountz
The Third Edition of Business and Commercial Litigation in Federal Courts has recently been published. This 11-volume treatise is an update of the version first published in 1999 and updated and expanded in 2005. The treatise is published by Thomson Reuters and the ABA Section of Litigation, and edited by Robert Haig of Kelly, Drye & Warren in New York.
This treatise is a remarkable resource that every federal court practitioner should have. Its 12,742 pages are comprised of 130 chapters written by 251 practitioners and federal judges around the country. The Third Edition has been substantially expanded with the addition of 34 new chapters. As you would expect, many of the contributing authors have national reputations in their fields. Some of the distinguished Texas contributors include Judge David Hittner and David Beck as co-authors of the chapter on Jury Selection; Harry Reasoner on Ethical Issues in Commercial Cases; Judge Barbara Lynn is a co-author of the chapter on Requests for Admissions; Stephen Susman co-wrote Techniques for Expediting and Steamlining Litigation; and Charles Babcock is the author of the chapter on Prior Restraint of Speech. Other Texas contributors are Barry Barnett, Edward Carr, David Coale, Vincent Hess, John McElhaney, Barry McNeil, Eric Nichols and Blake Tartt.
The authors volunteer their time to contribute and update the treatise; royalties go to the ABA Section of Litigation. The editor conservatively estimates that the authors and their law firms have invested more than 60 million dollars of billable time in working on the Treatise and its annual pocket parts, not including the time of the 22 federal district and circuit judges who contributed chapters.
The treatise is unique in its approach to coverage of the issues faced by litigators in federal court. Approximately the first half of the chapters in the treatise deal with topics that are common to most federal cases, such as personal and subject matter jurisdiction, removal, venue, joinder, pleadings, pretrial discovery, trials, judgment and appeals. These chapters address the litigation process from the initial case evaluation stage to conclusion of the case, and include chapters on topics including Multidistrict Litigation, Alternative Dispute Resolution, International Arbitration and the Impact of the Bankruptcy Code on Civil Litigation in the Federal Courts.
The chapters in the second portion of the treatise address 63 different areas of substantive law that are the subject of federal court litigation in commercial cases, including Securities, Patents, Trademark, Copyright, ERISA, White Collar Crime, the Foreign Corrupt Practices Act and the False Claims ActBecause this treatise has been written by judges and practitioners, most of the chapters outline the strategic issues and their implications that a practitioner should consider, in addition to a comprehensive survey of the law and procedure. There are useful Practice Aids and Checklists at the conclusion of almost every chapter, with Jury Instructions and Forms where appropriate. These materials are also contained on a CD-ROM. For example, the chapter on Discovery of Electronically Stored Information by Judge Shira A. Scheindlin contains a comprehensive discussion of the issues in this area, and concludes with detailed checklists for interviewing an organization’s employees, investigating the hardware environment and applications and investigating backup systems and archives.
The Forms section at the conclusion of the chapter also contains case management order provisions relating to production and inadvertent production issues. The treatise is worth having just for the Practice Aids, Checklists and Forms in each chapter. Plus, as noted above, the chapters are updated each year.
The Third Edition of Business and Commercial Litigation in Federal Courts is an impressive and comprehensive treatise. The scope and depth of its coverage of substantive law and procedure, together with its identification of strategic issues and practice aids, make it a valuable resource that a federal court litigator can use in virtually every case involving federal law or the federal courts.
Timothy W. Mountz is a partner at Baker Botts L.L.P. He can be reached at firstname.lastname@example.org.