Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2013



Legal Practice Tips

A Comprehensive Treatise:
Business and Commercial Litigation in Federal Courts
By Ronald K. Silver



The 12-volume Business and Commercial Litigation (3rd edition) is a comprehensive, useful, well-organized update to the excellent eight-volume second edition that was published in 2005. The third edition has added 34 new chapters, covering topics from Internal Investigations to the Federal Corrupt Practices Act, to keep pace with the expansion in commercial litigation. In addition, the publisher has made the helpful decision to annually replace the softcover appendix containing tables of all the jury instructions, forms, laws, rules and cases discussed in the third edition. The treatise comes with a CD-ROM containing all these items from the appendix. The compact disc will be updated annually as well.

It is daunting to evaluate a treatise that covers 130 subjects over more than 12,000 pages. One of the virtues of this treatise is its comprehensive approach, covering not only substantive law, but practical lawyering skills in pursuing a case from intake through discovery, trial and appeal. Another of its virtues is the outstanding group of authors contributing to the treatise. The editor-in-chief is Robert L. Haig, a partner at Kelley, Drye & Warren. There are 22 federal judges, including Susan Graber and Margaret McKeown from the 9th Circuit. Among the attorney authorsm there is a bias towards large firm litigators. That being said, they are an impressive group of leading practitioners who have many battle scars to their names.

The writing is consistently precise and practical. The scope of the treatise is remarkable. It has comprehensive chapters covering commercial law topics ranging from Antitrust, Securities, Mergers and Acquisitions, Reinsurance, Letters of Credit, Patents, Immigration, Executive Compensation, Commercial Real Estate, White Collar Crime, the False Claims Act, Sports and E-Commerce. This is just a small sampling. The chapters are heavily footnoted and conclude with practice aids including checklists, and where appropriate, forms and extensive law review articles.

I reviewed several chapters that cross my areas of practice, both with regard to general litigation and trial practice and substantive law. The new chapter on Internal Investigations, written by Gregory A. Markel and Jason M. Halper from Cadwalder, Wickersham and Taft, is an important guide to helping counsel assist their clients with the critical decisions needed to be made when clients realize they may have a problem and the United States may be interested in the same problem. The chapter takes the reader through the Department of Justice’s guidelines for gauging the clients’ cooperativeness and the internal review process used to determine the department’s response as set out in a series of memoranda known as the Thompson memo, the Filip memo and the current practices under Attorney General Holder. It also discusses the emerging issues from the Dodd-Frank Act.

Another new chapter discusses Pro Bono Litigation. Over the last few years, our office has seen the federal district court in Oregon conscientiously assisting pro se litigants obtain pro bono counsel in both employment and prisoners’ civil rights cases from Sheridan. The members of the bar doing this work are often taking on difficult clients pursuing difficult cases. It is important work, but not something that should be entered into without first assessing whether the firm’s background is the right fit for the assignment. This chapter of the treatise, written by James Clark of Gibson, Dunn and Crutcher, a strong advocate of pro bono work, does an excellent job helping prospective counsel assess the merits and pitfalls of taking the assignment. Assuming the firm decides to take on the work, the treatise is also a useful guide for avoiding potholes along the way.

The treatise has expanded its chapter on Employment Discrimination, an area where I have focused much of my career. The chapter is written by Lawrence C. DiNardo, Amy E. Dias and Eric S. Dreiband, three partners from Jones Day with many decades of employment litigation between them. The authors have done a useful job of providing both a good overview of the substantive law for employment claims and giving solid strategic approaches to defending the cases. They have included an important section on Electronic Stored Information, one of the most dangerous minefields any litigator is going to face defending these cases. They also discuss the new heightened pleading standards for complaints, post-Twombly and Iqbal. This is an important new defensive tool. The chapter also looks at social media in employment litigation. Another landmine the treatise defuses is the failure, when settling an Age Discrimination in Employment Act case, to incorporate within the settlement specific requirements of the Older Workers Benefit Protection Act. This is unique to age-related cases and can often be overlooked. Although the chapter is best seen as a starting point for researching the defense of an employment case, it is a start that lays a solid foundation.

Litigation is the subtext throughout the treatise. Every chapter is written to assist litigators to pursue or defend their claim in the specific substantive area. Furthermore, the treatise devotes many chapters specifically to litigation procedure. One volume is set aside to guide the litigant through discovery and the pretrial maze, and a second volume focuses on trial. The writers are among the country’s finest trial lawyers and judges. I appreciated the sound advice that John J. Curtin and John R. Snyder from Bingham McCutchen write in their chapter on Trials. One section is entitled, “If you cannot account for bad facts in your preparation, reconsider your settlement position.” I have had many clients who have not wanted to offer much in settlement even when they cannot tell me how to explain our bad facts. I enjoyed the chapter on Trials all the more when I looked up the authors and learned that John Curtin had once been the civil chief for the U.S. Attorney’s Office in Massachusetts.

I found the chapter on Cross-Examination informative. I have been teaching trial advocacy for many years, and I appreciated the sound approach the authors take to one of the more perplexing problems in cross-examination, the witness who wants to explain. Edward L. Foote and Peter C. McCabe III, experienced trial lawyers from Winston Strawn, lay out how careful crafting of the question can make the witness — rather than the lawyer — appear to be the unreasonable one when he asks for the right to explain his inability to answer simply “yes” or “no.”

The treatise provides useful sections on remedies throughout the various chapters. Recently, we were able to use the treatise to assist with successfully crafting an argument for specific performance in one of our affirmative cases.

The second edition of the treatise was reviewed by Lois Rosenbaum in the November 2006 Bulletin. She noted that for experienced litigators the second edition had practical aids and checklists that could be referred to throughout their litigation. That is certainly true of the third edition. As she noted then, and is still true, the suggestions on strategic considerations throughout the treatise significantly increase the value of the work. I expect practitioners with business and commercial clients will find themselves turning to this treatise on a regular basis.


ABOUT THE AUTHOR

Ronald K. Silver is an assistant United States attorney and chief of the civil division for the district of Oregon. The views in this article are his.

© 2013 Ronald K. Silver


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