Published by Westlaw, 2011, 2012; $1,351
When now Southern District Judge Katherine Forrest and I reviewed the first edition of this extraordinary treatise in 1998, we said that “if you knew everything in this six-volume treatise, you would have been at the top of your class in law school, you would have sailed through the bar exam and you would, most likely, have won more than your fair share of cases in federal court.”
The treatise has now grown to 11 volumes and is now in its third edition. I can say with some assurance that if you knew everything in those 11 volumes, you would, most likely, be on the federal bench, perhaps even the U.S. Supreme Court.
It is hard to keep from heaping praise on this work of Robert L. Haig of Kelley Drye & Warren in collaboration with West and the ABA’s Section of Litigation. There is nothing like it. It is the single most useful tool for the federal litigator in existence, except possibly the Federal Rules of Civil Procedure.
The format is familiar. The 11 volumes contain 130 chapters covering every procedural aspect of federal commercial litigation from pleadings to opening statements to information technology to discovery. Five of those 11 volumes also cover a wide range of substantive subjects that the federal litigator is likely to encounter, from patents to RICO to warranties and commercial real estate. There is even a chapter on white-collar crime.
When we wrote our first review, Judge Forrest and I noted that the work lacked discussion of certain subjects, such as tax, libel and trade secrets. Those defects have all been remedied. I have tried hard to think of a relevant subject matter that is not covered in this treatise but I cannot come up with one.
The most striking feature of this treatise—a feature that is unique among law treatises as far as I know—is the faculty. There are 251 authors, including 22 judges and what Haig calls “the cream of the commercial litigation bar.”
He was not exaggerating. Imagine learning about electronic discovery from Judge Shira Scheindlin, patents from Judge Timothy Dyk, ethical issues in commercial cases from Harry Reasoner, information technology from David Boies, white-collar crime from Randy Mastro, pretrial conferences from Judge William Lee, arbitration vs. litigation from Drew Days, venue and forum selection from Gary Naftalis, document discovery from Jim Quinn, the FCPA from Mary Jo White, third-party practice from Joan Lukey, enforcement of judgments from Carolyn Lamm, litigating international disputes in federal courts from Warren Christopher, banking from Owen Pell, communications from Richard Wiley and expediting litigation from Steve Susman?
The list goes on and on. This treatise is a CLE program on steroids.
Let’s take Bill Frank’s chapter on presentation of the case in chief as an example of how this treatise works. Bill is of counsel at Skadden Arps Slate Meagher & Flom and knows a great deal about trying commercial cases in federal courts. His chapter is 71 pages of essential, useful and practical information and advice about the presentation of the case in chief at trial.
Frank notes correctly that there is no right formula or one-size-fits-all for the development on a case in chief but because the most important goal of a party’s case in chief is to persuade the trier of fact, he analyses the methods by which a trial attorney may construct a powerful case in chief. Some of the topics he discusses include order of proof, problems and opportunities caused by multiple parties, burdens of proof, time limits, the use of themes, proof of damages, the well-known Texaco dilemma (the tactical decision not to contest the plaintiff’s damage calculation), preparation of witnesses, presentation of deposition testimony, the use of documents, and trial subpoenas. He ends the chapter with three useful checklists. Other chapters are similarly comprehensive and easy to use.
Most federal commercial litigators are generalists. With a few obvious exceptions, gone are the days when a commercial litigator could make a career out of specializing in one particular type of litigation. That is why a treatise of this kind is so useful; it covers the waterfront. But it is not just a recapitulation of substantive and procedural law. The authors of this treatise have all been in the trenches and are not reticent about sharing the lessons that they have learned in lifetimes of experience.
Take, for example, the discussion of questions from jurors in the chapter on jury conduct written by three distinguished federal judges, Susan Graber and Margaret McKeown of the Ninth Circuit Court of Appeals and Jeffrey Miller of the U.S. District Court for the Southern District of California. They note that whether to permit questions from jurors is not controlled by the Federal Rules of Evidence but almost all appellate courts have granted discretion to the trial court to allow or disallow such questioning.
They write that “from the standpoint of the lawyers and litigants, questions from the jury box can give insight into the jurors’ view of the case and thereby suggest areas of inquiry or emphasis that otherwise might be overlooked.” But they caution that “when jurors are allowed to ask questions, even under the close supervision of the court, the lawyers necessarily lose some of their control over the development of the evidence. Counsel may, by spoken or unspoken or, perhaps, even unrealized agreement, have concluded that a particular line of inquiry or a specific question should not be asked of a witness. Counsel may be hesitant to explain the reasons for not wanting the question or series of questions to be asked, and the court, being unaware of the lawyers’ concerns, may allow the question, finding it perfectly appropriate.” Those very practical and useful considerations come from the trenches, not the library.
In his foreword to the third edition, Haig writes that the features in the treatise “were designed to provide the reader with everything needed to handle every aspect of a commercial litigation. The format makes this wealth of information equally accessible and useful for the commercial litigator when he needs an immediate answer for the client on the telephone or during a five minute deposition recess or when he has several hours to read, learn, and (hopefully) enjoy at leisure.”
Haig’s treatise is footnoted extensively but not overly so, with the possible exception of the chapter on evidence, which is heavily footnoted, perhaps of necessity. The authors cite the leading cases and secondary sources on each proposition of law but they do not engage in an unnecessary pedantic discussion of the law in the abstract.
Helpfully, West Key Numbers are included for each topic and each chapter has a list of “research references,” most linked to the relevant ALR Library publication. A CD-ROM comes with the treatise and contains all of the jury instructions, forms and checklists that are included in the printed volumes.
Haig deserves great credit once again for making this treatise so comprehensive and useful. That should not surprise anyone who knows him. He has had a distinguished career at the bar and in public service. He was president of the New York County Lawyers’ Association and was founder and first chair of the New York State Bar Association’s Commercial and Federal Litigation Section. In this work, he has continued his contribution to our profession and we are very grateful for it.
Paul Saunders is counsel to Cravath, Swaine & Moore and distinguished visiting professor from practice at Georgetown University Law Center.