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Business and Commercial Litigation in Federal Courts Robert Haig, ed. Thomson West/$960 While the challenge of compiling and editing a treatise on so broad a subject as commercial litigation would be daunting to most, Robert Haig has come through a second time. Haig builds on his prior success with a second edition of “Business and Commercial Litigation in Federal Courts” that deftly mixes legal analysis with practice tips in 96 areas of substantive and procedural law as well as various areas of litigation management. Authored by a stellar cast of leading members of the federal bench and bar, the eight-volume treatise provides a single source of guidance on an extraordinary range of topics and challenges faced by in-house and outside commercial litigators on a daily basis. While treatment of many topics includes sophisticated analysis by experienced practitioners, the treatise also provides a good introduction to, or refresher on, numerous areas of substantive law, together with ample citations that will allow the reader who needs more detailed research to get into the subject quickly. Among the new substantive law chapters in the second edition are mergers and acquisitions, broker-dealer arbitration, director and officer liability and commercial defamation and disparagement. On the practice side, Haig, a partner at Kelley Drye & Warren in New York, has added sections including case evaluation, litigation technology, civility and litigation management from both the law firm and corporation perspectives. The analysis provided by the authors is the stuff of real-life litigation and not merely academic in approach. For example, recognizing that case evaluation is not “a scientific process or even a highly developed art form,” chapter authors Louis Solomon and Bruce Fader, both partners at Proskauer Rose, offer helpful suggestions including an assessment of the respective roles of the client, in-house counsel and outside litigation counsel. Wisely recognizing that client objectives often change in the course of litigation, the authors provide valuable guidance on assessing those objectives at the outset of a case and as the case proceeds. Other topics include evaluating the strengths and weaknesses of a case from the perspective of documents and witnesses, consideration of relevant law, estimation of damages and communication of your evaluation to the client. With the advent of electronic discovery in commercial litigation, Haig scores a coup by getting one of the leading federal judges involved in defining the scope of electronic discovery, Judge Shira Scheindlin of the Southern District of New York, to co-author the new electronic discovery chapter. Scheindlin is known to litigators throughout the country as the author of the ground-breaking Zubulake decisions. Together with her co-author, Jonathan Redgrave, partner at Redgrave Daley Ragan & Wagner, she provides a comprehensive overview of the need for pre-litigation planning, the duty to preserve electronic information, the use of preservation orders and other techniques available to help counsel control the potentially crippling costs of electronic discovery as well as the potentially devastating impact of even unintentional failures to preserve electronic information. Although the chapter’s discussion of the federal rules was written before the adoption of the new federal electronic discovery rules, I am advised that a revised chapter which discusses the new rules will be published soon. The discussion of the parties’ discovery obligations and the means to effectively deal with those obligations should prove to be of great benefit to any litigator who has not yet been exposed to the process. A good example of the mixture of legal analysis and practical advice provided in the book is contained in the chapter on punitive damages. The authors review the development of modern punitive damages law through the series of Supreme Court cases beginning with Browning-Ferris Industries, Inc. v. Kelco Disposal and concluding with the 2004 Supreme Court decision in State Farm Mutual Automobile Insurance Co. v. Campbell. Focusing most heavily on the State Farm decision, the authors explain each element of the decision and survey how courts have applied the case at both the federal and state levels. The chapter also provides strategic analysis and practice pointers for plaintiffs and defendants from the pleading stage through discovery, pre-trial motions, trial and appeal. In addition to its procedural and substantive law sections, the book offers guidance on litigation management from several perspectives. There are chapters on litigation avoidance and prevention, techniques for expediting and streamlining litigation, litigation technology, litigation management by law firms and litigation management by corporations. The latter chapter, written by King & Spalding partner Meghan Magruder and William Herr of Dow Chemical Co., is most directly applicable to in-house counsel, but is of great value to outside litigation counsel as well. Understanding the basis for corporate management of litigation can greatly enhance outside counsel’s ability to develop a strong relationship with corporate clients. Magruder and Herr do a thorough job of explaining the considerations corporate clients take into account as they move through the process of selecting and retaining outside counsel, managing litigation fees and costs, communicating with outside counsel, engaging in case review and meeting reporting requirements. The chapter is filled with practical advice as well as forms useful to both inside and outside counsel throughout the litigation process. Relationships between opposing counsel, and between counsel and the court, are the primary focus of Susman Godfrey partners Stephen Susman and Barry Barnett in their chapter, “Techniques for Expediting and Streamlining Litigation.” Susman and Barnett suggest a variety of techniques � some of which no doubt will be controversial � to achieve the goal set forth in the chapter’s title. For example, they recommend not taking many depositions and keeping the ones that you do take short. “You don’t need to look under every stone. You just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.” Coming from Susman, who is widely regarded as one of the top trial lawyers in the country, and his highly accomplished co-author, Barnett, the suggestions are worthy of serious consideration by those seeking the “just, speedy and inexpensive” resolution of litigation. Another example: They recommend calling opposing counsel at the outset of the case to introduce yourself and to suggest agreement on a standard set of procedures “before either side can figure out which will benefit more from any particular procedure.” This would include agreements on the means to resolve discovery disputes, scheduling of depositions, service of all papers by email and sharing the cost of imaging all deposition exhibits. Susman and Barnett also turn their attention to trial judges, urging them to intervene early if necessary to ensure efficient case management and cooperation between counsel. The treatise, which is published in association with the ABA Section of Litigation, comes with a handy CD containing all forms, jury instructions and checklists contained in the treatise. The forms include a task assignment memo, simple case budget, requests for proposal, sample pleadings and Freedom of Information Act request forms. Robert L. Rothman is a partner at Arnall Golden Gregory in Atlanta and vice chair of the American Bar Association’s Litigation Section, which receives royalties from the sale of the treatise reviewed. This review first appeared in Recorder affiliate Fulton County Daily Review.

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