In 2011, while privileged to serve as a judge in the Commercial Division, I reviewed the third edition of Commercial Litigation in New York State Courts for the New York County Lawyers’ Association and wrote that the six volume set, with appendix, was “[l]ocated on the bookshelf behind my desk, within easy reach.”
Since my retirement from the bench in 2012, the third edition has continued to remain close at hand. Now, with publication of the fourth edition, which has grown from six volumes to eight volumes, still with a separate appendix, it will continue to remain as an oft-referred-to invaluable resource on my (newly strengthened) bookshelf.
Contrary to Ludwig Mies van der Rohe’s famous aphorism, “less is more,” with the publication of this edition, clearly “more is better.”
This edition includes 22 new chapters, and contains the work product of 182 distinguished authors (up from 144 in the third edition), including 29 judges, all of whom are steeped in the nuances and rules of procedural and substantive law governing commercial litigation in the courts of the Empire State.
The format of this exhaustive work, in the lingo of the Digital Age, is “user-friendly.” Its self-conscious design, as in the past editions, is to enable the commercial litigator, whether novice, journeyman or expert, to navigate swiftly and competently, the currents of commercial litigation in New York. It continues the useful inclusion of practice aids, consisting of checklists, innumerable forms—litigation and others, jury charges, and even a “redacted excerpt from a cross-examination of an adverse party in a complex commercial case” (§42:27). All of which are contained on a CD-ROM that comes with the work, as does a separate soft cover appendix (to be replaced annually) containing a table of laws and rules, a table of cases, and an exhaustive index.
The work is organized to follow the flow of a commercial case throughout its litigation lifetime, and then turns to substantive topics. It is a format well-suited to provide a step-by-step guide to commercial litigation. To my mind, this format succeeds as intended: it provides a readable road map to the vast landscape of commercial litigation.
This is not the place to list the title of each of the 127 chapters. However, if any commercial litigator were to peruse the table of contents of just one of the eight volumes, I believe it would compel the wish to have it always at arms reach!
One chapter of interest is “Commercial Litigation in New York State Courts” (Chapter 1) by Chief Judge Jonathan Lippman, who adding, to the third edition’s earlier chapter, written by his predecessor as chief judge, Judith Kaye, discusses the comprehensive recommendations of the 2012 Report of the Chief Judge’s Task Force on Commercial Division in the 21st Century. Many of these have now been implemented or are in the process of implementation and are discussed, when relevant, throughout various sections: e.g., §§65:7 et. seq. (“Techniques for Expediting/Streamlining Litigation [including the pilot mandatory mediation program]); §30.5 “Expert Disclosure and Communications with Experts”—as noted in the text, such discovery is “now on a par with that of the Federal District Courts”); and §35.10 (“Assignment to the Commercial Division [new requirement that a party seeking assignment to the division, file a RJI within 90 days after service of the complaint]). Awareness of these current amendments and rule changes, is crucial, I believe, to competent practice in the Commercial Division.
The fourth edition’s significant expansion was driven by the need, as the editor-in-chief, Robert Haig, succinctly put it: “to address new subjects that are important to commercial litigators today.”
I would add that they are of vital importance today. Also of vital importance was the updating of the earlier chapters, rather than continued use of lengthy pocket parts, some of which had grown to more than 50 pages.
The 22 new chapters range from the practical (e.g., Chapter 5, “Internal Investigations”) to the procedural (e.g., Chapter 22, “Preliminary and Compliance Conferences and Orders,”) to the substantive (e.g., Chapter 120, “Commercial Leasing”).
These few examples are only a taste of what awaits the commercial litigator who turns to this edition. It is hard to imagine anyone litigating in the Commercial Division without first seeking assistance from this work, and not locating in the index what is needed to deal with any, if not all, aspects, of a commercial case. For the experienced practitioner, the fourth edition will reinforce and serve as welcome reassurance. For those new to commercial litigation it will serve as an invaluable tool. It is not only an in-depth treatise on commercial law and practice, but it contains in one place a trove of otherwise hard to obtain collective experience and wisdom.
Reviewing the third edition in 2010, Justice Thomas E. Mercure, Appellate Division, Third Department, wrote that “[t]he 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 again standardizing the organization of all the chapters.”
These words apply in spades to the fourth edition.