Litigation treatise a masterwork, both accessible and deep

 William F. Lee and Louis W. Tompros, 

The Daily Record Newswire
In the foreword to the third edition of his “Business and Commercial Litigation in Federal Courts,” editor Robert L. Haig writes that the treatise will provide an unmatched combination of “in depth treatment of federal civil procedure with substantive law in the areas most commonly encountered by commercial litigators.”

The treatise makes good on that promise.

Like previous editions, the work is divided into two parts. The first 66 chapters specifically focus on procedural aspects of commercial litigation, walking step by step from pre-litigation evaluation through post-appeal procedure.

The remaining chapters are dedicated to substantive legal issues. The division provides a natural way to use the treatise in practice. Very few practitioners will have the time to read every volume cover to cover. But when facing a new procedural issue for the first time, a practitioner can consult the relevant chapter to understand the rules and strategic considerations, and to find helpful checklists and forms.

Likewise, when taking on a case addressing an unfamiliar area of law, a practitioner can consult the applicable substantive legal chapter for an in-depth treatment of the law, as well as research references and jury instructions.

Notably, making good on Haig’s promise of combining procedure with substance, the substantive law chapters also engage deeply with relevant recurring procedural questions, and the procedural chapters highlight relevant areas of substantive law.

One remarkable aspect of the treatise is how it has managed to stay on top of cutting-edge developments in the law, both substantive and procedural. As in previous editions, Haig has assembled an all-star cast of authors made up of experienced federal practitioners, along with a group of 22 distinguished federal judges from district courts and circuit courts of appeal. It is the participation of these expert authors that allows the treatise to address topics in so much depth, even in areas in which the law is in flux.

For example, the chapter on patents was written by Judge Timothy B. Dyk of the Federal Circuit Court of Appeals and professor Samuel F. Ernst. It is hard to imagine a more qualified author on the topic of patent law than one of the judges of the court that has exclusive jurisdiction over appeals in patent matters.

The patents chapter acknowledges that patent cases can be particularly difficult to manage, “because both the facts — often involving cutting edge technology — and the law are typically complex” and can involve “extensive disputes” and a “dizzying array of defenses.”

But the chapter walks through those complexities in great detail — addressing even rapidly evolving areas of law, including contributory and induced infringement, patentable subject matter and patent exhaustion.

The patents chapter also dives deeply into procedural questions that arise (sometimes uniquely) in patent infringement matters, including motions to stay pending patent office review, bifurcation, patent infringement and invalidity contentions, technology tutorials, claim construction proceedings, and discovery unique to patent cases. The chapter concludes with a helpful checklist of patent-related allegations and defenses.

The procedural chapters are likewise full of in-depth analysis and practical tips.

International arbitration practice remains unfamiliar to many federal litigators, even though the sophisticated international companies that once relied heavily on commercial litigation in federal courts are increasingly turning to international arbitration for dispute resolution.

The treatise’s chapter on international arbitration — written by New York Southern District Court Judge Paul A. Crotty and Robert E. Crotty of Kelley, Drye & Warren — begins with a detailed analysis of the advantages and disadvantages of international arbitration. It then walks the reader step by step through the typical international arbitration process, helpfully identifying areas in which international arbitration proceedings are likely to differ from proceedings familiar to federal litigators.

For example, the chapter explains the importance of understanding civil law tradition with respect to witnesses and documents before cross-examining a witness — meaning what may be a killer cross-examination in a federal courtroom could easily fall flat in an international arbitration.

Helpfully, many sections of the chapter conclude with a “best practices” subsection highlighting key advice and pitfalls. Notably, the international arbitration chapter was a new addition to the third edition — as were 33 other chapters encompassing new or rapidly changing areas of the law.

This effort to update to stay ahead of the curve is a large part of what makes the third edition so useful. For example, there is an excellent and practical chapter addressing privacy and security, written by practitioners Thomas C. Green, Karen A. Popp and Edward R. McNicholas. It’s a thoughtful and forward-looking inclusion: data privacy, cloud computing and information security are extraordinarily important issues facing businesses today, and the practitioners representing those businesses absolutely must understand and be prepared to address them.

The chapter on privacy and security includes useful analysis both of the impact electronic privacy can have on litigation, and the reverse: the impact litigation can have on electronic privacy (and how to minimize the risk of a data breach during commercial litigation). Like the other chapters, it ends with a set of useful practice materials, including a data breach incident response checklist, a litigation privacy notice, and a proposed protective order addressing data security concerns.

Given the ready online availability of rules, guides and models, there are very few books — much less multi-volume sets — that truly add value by being in a practicing federal litigator’s office. But this is one of them. Its depth, its reliability and its usability make it a valuable practice tool for federal practitioners of any experience level.


William F. Lee and Louis W. Tompros are partners at WilmerHale in Boston.


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