Updated Treatise for the Federal Court Litigator Does Not Disappoint

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: New Hampshire Bar News
May 17, 2023

In my role at McLane Middleton, I am continuously intent on finding publications and resources geared to the trial lawyer.  Recently, I took the time to review Business and Commercial Litigation in Federal Courts, Fifth Edition.  It is the perfect treatise for any commercial litigator.

The 16 volume work is available in a hardbound set of books or as a ProView eBook.  While I often prefer flipping through the pages of a hardbound book, particularly when researching statutes, I recognize the changing look of our law libraries today and the continuing need to access legal resources from various remote locations.  With this in mind, I chose to review this treatise electronically.  The ProView eBook was easy-to-use as it allowed me finger-tip access from my desktop to a treasure trove of topics throughout the life-cycle of a commercial case.

The Fifth Edition contains 26 new chapters on emerging and cutting-edge topics in the corporate litigation world as well as expands on the prior sections.  Some of the additional subject areas include the intriguing topics of artificial intelligence, shareholder activism, space law, and virtual currencies.  The revisions from the Fourth Edition also cover the procedural and practice changes we have seen in litigation over the last several years.  Now encompassing a total of 180 chapters, the relevant topics and practical litigation tools accessible to the business law trial lawyer remain comprehensive and impressive.

Robert L. Haig does another excellent job as Editor-in-Chief of embracing all aspects of business litigation in federal courts.  Beginning with the assessment of a new matter when the call first comes in on a case to preparation of the complaint or answer and third party practice, the Fifth Edition is a valuable resource.  The treatise is full of useful tips on handling a commercial case at all stages of litigation, provides sample discovery, and contains various forms for use.  Together, the 393 principal authors from throughout the country, including 32 judges, reveal valuable insights, perspective, and step-by-step strategies for trying a commercial case, whether for a plaintiff, a defendant, or a third party.

Of great assistance to any trial lawyer, this treatise contains numerous checklists, model jury instructions specific to federal litigation, and various proposed orders.  The Fifth Edition is also unique from other resources because it contains chapters central to any law practice on the topics of Budgeting and Controlling Costs, Fee Arrangements, Third Party Litigation Funding, and Crisis Management.  The comprehensive index of rules, statutes, and over 50,000 cited cases allows an easy reference guide and shows the amazing array of topics this publication embraces.

The volumes offer practical advice many of us would find handy in any commercial litigation case.  For example, Chapter 52 on Trial Evidence presents guidance on trial preparation and what legal analysis lawyers should consider before offering evidence through trial witnesses or exhibits.  The chapter further includes specification on how to admit exhibits into evidence and techniques on how best to present evidence to the trier of fact.  Examples of demonstrative and illustrative exhibits complete the section.

For those practitioners headed into trial, Chapters 48 and 53 cover openings and closing arguments, respectively.  Chapter 44, new to the Fifth Edition, addresses consideration of the Use of Jury Consultants both pre-and-post jury selection.  These chapters cover a variety of commercial litigation contexts, and the authors include helpful checklists for each section.

On the mind of many law firm leaders and legal organizations today, Chapter 83 covers the teaching of litigation skills to newer lawyers.  The chapter includes guidance on how to train in oral advocacy and written advocacy as well as reaching high level emotional and social intelligence and recognizing and controlling non-verbal communication skills.  Storytelling, brevity and clarity, and mastering the facts of a case are some of the other items included.  There is also a section on effective legal teamwork during trial.  Anyone responsible with training within their firms or organizations will appreciate the practical and helpful materials.

In sum, the ABA Section of Litigation has another winner in this publication.  The Fifth Edition is a good purchase for any commercial litigator practicing in federal court today.  Make sure you consider this treatise for your library of resources.