Book Review: Business and Commercial Litigation in Federal Courts, Fifth Edition

BOOK REVIEW

Business and Commercial Litigation in Federal Courts, Fifth Edition

Reviewed by Leslie Hyman

Nearly 200,000 non-family civil cases were filed in the state courts of Texas in fiscal year 2021. During a similar period (calendar year 2021), only 19,335 civil cases were filed in the federal courts of Texas. It is thus hardly surprising that many civil litigators are less comfortable practicing in federal court than they are in state court. For those who practice business and commercial litigation, the multi-volume treatise Business and Commercial Litigation in Federal Courts, now in its Fifth Edition, provides a thorough guide to both the procedure and the substance of federal court litigation.

Haig, Robert L., editor in chief, Business and Commercial Litigation in Federal Courts, Fifth Edition (Thompson Reuters, 2021), $2,088.

Since San Antonio Lawyer reviewed the Fourth Edition in 2017, the series has again been substantially expanded, including the addition of 26 new chapters, for a total of 180 chapters. In addition, each of the existing chapters has been updated, including seamlessly integrating information from the annual pocket parts.

Editor-in-Chief Robert L. Haig worked with 373 principal authors, including 32 judges (including Texas Judges George C. Hanks Jr., David Hittner, and Barbara Lynn), and such Texas luminaries as Thomas Ajamie, Charles L. “Chip” Babcock, David Beck, David Coale, Layne Kruse, Mary-Olga Lovett, and Harry Reasoner. (Unfortunately, no San Antonio lawyers made the author list.) Despite the number of authors, Mr. Haig has succeeded in standardizing the chapters, each of which includes the practical scope of the topic with cross-references to the specific sections, an informative essay with authoritative footnotes, and practice aids, including a checklist of key issues, sample forms, and, where applicable, jury instructions.

The first eighty-six chapters of the Treatise cover procedural and practical considerations such as jurisdiction, venue, pleadings, thirdparty practice, removal, joinder and severance, remedies, parties, discovery, motions practice, settlement, trial, judgments, and appeals. As an example of the depth of the treatment on these topics, “trial” is covered by separate chapters on jury selection and consultants, opening statements, strategy, case presentation, expert witnesses, evidence, and closing arguments.

Chapters 87 through 180 cover substantive topics likely to be litigated in federal court. These chapters cover traditional subject matters such as antitrust, admiralty, insurance, intellectual property, labor and employment, ERISA, RICO, white collar crime, Foreign Corrupt Practices Act, government contracts, and tax. But there are also chapters on corporate issues (such as Corporate Litigation Reporting Obligations, Regulatory Litigation with the SEC, Commodities and Futures, Director and Officer Liability, Executive Compensation, and Fiduciary Duty Litigation), Money Laundering, Sports, Entertainment Law, Art Law, and E-Commerce. Of particular interest to the Texas practitioner, one of the new chapters is Comparison with Business and Commercial Litigation in Mexico, and there are also updated chapters on energy and environmental litigation. These substantive chapters are useful both as a step-by-step guide for litigating these areas of law and as an introduction to the covered topics. For example, if I knew I was having a meeting with a client facing a ”Space Law” issue, I could review that portion of the Treatise to familiarize myself with the issues.

For those who litigate commercial cases involving Delaware corporations, the new chapter Comparison with Business and Commercial Litigation in Delaware Courts is very helpful. As described in its introduction, the chapter “explores the procedural and substantive differences between business and commercial litigation in Delaware and federal courts in order to provide a practical guide for business litigators who may be choosing between the two jurisdictions.” The chapter includes a lengthy discussion of Delaware books and records actions that includes the bases for bringing such an action, the process for initiating one, and a substantive discussion of the required “proper purpose.”

The Treatise is available both as a set of eighteen books and as an ebook edition. I opted for the ebook edition in the interest of saving shelf space and, theoretically, making the Treatise more easily available to my colleagues. Unfortunately, I found the ebook edition to be somewhat difficult to read on the screen (too much scrolling required). The ebook is connected to my Thompson Reuters OnePass profile and located in a Thomson Reuters ProView viewer so sharing it with my colleagues is not as simple as having the Treatise on a shared server. While I can share portions from within the viewer, the link generated requires the recipient to sign into Westlaw. Overall, I recommend making room in your office for the physical books.

Leslie Hyman is a partner with Pulman, Cappuccio, & Pullen, LLP, where she focuses on commercial litigation, bankruptcy, and appeals.