Edited by Robert L. Haig, West and the New York County Lawyers’ Association, $660
The six-volume, third edition of “Commercial Litigation in New York State Courts” has been substantially expanded, with 19 new chapters added to the 88 chapters of the second edition. The first two editions of this well-known treatise and practice guide received substantial critical acclaim, and the set has become an invaluable resource to practitioners engaged in commercial litigation. My own reviews of both the first and second editions were quite positive. The early editions thoroughly addressed relevant case law and procedure and served as eminently useful practice guides. The third edition furthers that tradition.
The new edition contains the work of 144 distinguished authors, including 20 judges and the top practitioners engaged in commercial litigation in the courts of this state.
In his foreword to the third edition, Robert L. Haig, the editor-in-chief, indicates that this edition is a response to the evolution of commercial litigation in New York state courts over the past six years, addressing new subjects important to commercial litigators today. This set of books is an exemplary response to substantial changes in the field of commercial litigation.
The treatise begins with a helpful retrospective by Chief Judge Jonathan Lippman, who puts the balance of the treatise in context. As the chief judge indicates, the Commercial Division opened its doors for business in 1995 with six parts in two counties. At that time, business litigants often chose to litigate in the federal courts or in other states.
According to the chief judge, the Commercial Division has brought the business community back to the New York state courts. A comprehensive body of commercial law has developed over the past 15 years and commercial litigants are now served by 25 parts in 10 counties. Judge Lippman credits former Chief Judge Judith S. Kaye with much of the success, and he states the goal of the court system: “we must never retreat from our commitment to provide a venue for business litigation that is commensurate with New York’s role as a world business capital.”
The third edition, like the second, proceeds chronologically through the entire gamut of commercial litigation, beginning with chapters on jurisdiction and venue. The following chapter on case investigation discusses an attorney’s obligation to conduct a reasonable investigation and provides excellent advice for fact gathering from the client and others. The treatise leads the reader step-by-step through case evaluation, pleadings, discovery, motions, trial, appeal and enforcement of judgment. It is permeated with invaluable strategies and tactics.
In that regard, it is not surprising that discovery, one of the most significant components of commercial litigation, is an important focus of the set. There are separate chapters which detail the procedures and strategies appropriate to disclosure devices such as depositions, document discovery, interrogatories and requests for admissions. An introductory chapter discusses how best to formulate a plan for discovery tailored to fit the particular case. The document discovery chapter, which is particularly strong with numerous practical suggestions on the discovery of electronic records, covers all aspects of document discovery and comprehensively reviews developing New York law regarding electronic discovery.
The procedural aspects of motion practice are covered in individual chapters on, among other things, summary judgment, trial and post-trial motions. Each chapter contains detailed coverage of the requirements of the CPLR and checklists summarizing the procedural requirements.
Two chapters dealing with motions bear special mention. The chapter on the six provisional remedies available under the CPLR— preliminary injunctions, temporary restraining orders, attachment, temporary receivership, notice of pendency and seizure of chattel—is extremely useful. The author examines both practice and procedure, and guides the practitioner through a myriad of statutory requirements in order to successfully obtain or oppose a provisional remedy. Another chapter discusses the objectives and strategic considerations associated with motions in limine used to either exclude or include evidence at trial. The author provides an outline of suitable issues, a thorough discussion of appealability and practical considerations, a practice checklist, and useful forms.
The centerpiece of the set is the section on trials, which is divided into nine separate chapters, nearly 700 pages in length, all of which were originally written by the late Stephen Rackow Kaye. To honor his memory, members of Steve’s law firm, Proskauer Rose, updated and revised the nine chapters, retaining in very substantial part Steve’s prior work.
The section—beginning with trials in general and the opening statement, and concluding with closing arguments and jury conduct, instructions and verdicts—provides an outstanding analysis of every aspect of the trial, as well as Steve’s insights into effective trial strategy. There is no aspect of the trial of a commercial case that is not thoroughly covered in these nine superb chapters.
The treatise’s 19 new chapters include a number of subjects whose importance has dramatically increased in recent years such as: Comparison with Commercial Litigation in Federal Courts; Coordination of Litigation Within New York and Between Federal and State Courts; Sealing of Court Records; Litigation Avoidance and Prevention; Crisis Management; Litigation Management by Law Firms; Litigation Technology; Civility; Employment Restrictive Covenants and other Post-Employment Restrictions; Not-For-Profit Institution Litigation; Health Care Institution Litigation; White Collar Crime; The Interplay Between Commercial Litigation and Criminal Proceedings; Privacy and Security; Consumer Protection; E-Commerce; Information Technology Litigation; CPLR Article 78 Challenges to Administrative Determinations; and Commercial Real Estate.
Given that parallel civil and criminal proceedings in business matters are increasingly common, the chapters on white-collar crime and on the interplay between commercial litigation and criminal proceedings are particularly valuable additions to the set. Both chapters are strategically focused, providing practical advice on issues such as immunity, privileged materials, protective orders and the interplay between civil damages and criminal restitution.
Indeed, all of the new chapters are uniformly well documented with extensive annotations to case law and relevant statutes. Many of the chapters include discussions of strategy and summaries of essential claims and defenses, in addition to helpful forms, checklists and jury charges.
Three of the new chapters bear additional mention. First, a new chapter on CPLR Article 78 challenges by Court of Appeals Judge Victoria A. Graffeo is a great addition inasmuch as commercial litigators frequently use Article 78 proceedings when their clients are dissatisfied with administrative determinations.
All aspects of Article 78 are comprehensively discussed, including limitations periods, the standard governing judicial review and appellate considerations. Second, a chapter on E-Commerce by Steven M. Bierman and James D. Arden discusses how courts have extended, expanded and applied existing common law principles to the new medium of e-commerce. Because e-commerce claims cannot be confined neatly within state lines, the chapter deals with jurisdictional issues. Considerable practical advice is provided regarding new legislation relating to the Internet and the impact of the statute of frauds on electronic communications.
Finally, in a new Consumer Protection chapter Justice Thomas A. Dickerson of the Appellate Division, Second Department provides detailed treatment of a wide variety of consumer protection issues ranging from baldness products to wedding singers.
This treatise is an extraordinarily useful reference for practitioners in both upstate and downstate practices, no matter the size of the firm, and no matter the simplicity or complexity of the lawsuit. Written largely by practitioners from large firms, it contains sophisticated advice that will be helpful to even experienced advocates. The set was designed, however, to meet the needs of the small firm or solo practitioner as well. In fact, it may be even more valuable to those practitioners who do not handle commercial cases on a regular basis because the authors present, in a highly accessible manner, everything a commercial litigator needs to know to advocate in the state’s courts.
Procedures, strategies and pitfalls of various courses of action during the progression of litigation are offered by advocates who have learned through vast experience. To aid the practitioner, forms, checklists and jury charges can be found on the separate CD-ROM included with the set. Additionally, to facilitate further research, references to West’s Key Number Digest, legal encyclopedias, and other legal reference materials are provided. The many notable authors should be applauded for their contributions, and Mr. Haig is to be congratulated for again assembling a stellar line-up of contributors and standardizing the organization of all the chapters.
“Commercial Litigation in New York State Courts” is a joint venture between West and the New York County Lawyers’ Association. All royalties from sales of this treatise and its annual pocket parts go to NYCLA.
Thomas E. Mercure is a justice on the Appellate Division, Third Department.