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Impressive Treatise for the Federal Court Litigator

Written by: Jennifer L. Parent

Published in NH Bar News (July 2018)

In my role at McLane Middleton, I am often called upon to review publications and resources geared to trial lawyers. When doing so, I look for comprehensive materials both substantively and procedurally that are easy to use and contain guidance or tips that will benefit a lawyer’s trial practice. I recently found just such a publication.

While not my typical beach read this time of year, “Business and Commercial Litigation in Federal Courts, Fourth Edition,” is the perfect treatise for any commercial litigator at any time.  The 14-volume work arrived at my office in two fully-packed bankers boxes. As I dug into this treasure trove of hardcovers encompassing the entire life-cycle of a commercial case and 78 substantive law chapters, it felt like Christmas in July. 

The Fourth Edition contains 25 new chapters and has approximately 4,400 more pages of text. The revisions from the Third Edition also encompass the procedural and practical changes we have seen in litigation over the past six years. Federal rule changes are captured throughout and the information is organized in a simple and readable format. With today’s real-world dynamic of increased technology in business and law and the diminishing borders of law practice, the additional subjects on social media, cross-border litigation, and marketing to potential business clients are welcome.

Editor-in-Chief Robert L. Haig does another incredible job of embracing all aspects of business litigation in federal court. From the assessment of a case when it comes in the door to preparation of pleadings and from the discovery phase of litigation to trial strategies, the Fourth Edition is a valuable resource full of tips on handling a commercial case. The impressive 296 principal authors include 27 judges and top practitioners throughout the country.  Together, these authors reveal in the pages of text valuable insights, perspective, and useful step-by-step strategies for trying a commercial case, whether for a plaintiff or a defendant. 

To provide a flavor of what is offered by this treatise, I picked a few chapters many of us would find handy in any commercial litigation case. For example, summary judgment motions are covered in Chapter 31. The pages of this chapter walk you through assessing your case to determine how to most effectively and efficiently pursue a Rule 56 filing. Not only does the treatise delve into the requirements under the federal rules of civil procedure, but it guides practitioners in determining when you may want to bring this dispositive motion and how best to plan for obtaining the discovery needed for moving for summary judgment. It also presents convenient information for the nonmovant opposing such a motion and details effective opposition papers and supporting materials.

For those heading to trial, Chapter 37 addresses how strategic motions in limine can help you frame your case pre-trial and potentially limit the other side’s case.  The pages are full of real case examples of how motions in limine have been used in a variety of commercial litigation contexts, which offers a practical perspective.  The authors also include helpful checklists. 

A series of chapters cover trial strategy and advocacy.  This includes guidance on how to tell a story and strategies you can use to develop a theory and a theme for your case.  Each aspect of the trial is touched upon – jury selection, opening statements, direct examination, cross-examination, expert witnesses, closings, and more. 

As we all know, trials are all about the evidence.  There is an extensive chapter dealing with evidence at trial and the evidentiary challenges of getting evidence in or in keeping it out under the federal rules.  The authors detail the many evidentiary issues we encounter as trial lawyers during trial, including hearsay and the exceptions to the rule.  Laying a foundation for various forms of Electronically Stored Information (ESI) provides further helpful tips to trial lawyers.  Pages are dedicated to the admission of social media sites such as Twitter or Facebook as evidence at trial, which we are all seeing on the increase in courtrooms nowadays.

Of great assistance to any trial lawyer, this multi-volume set has jury instructions specific to federal litigation and a host of substantive areas of commercial law.  The tables of case law, rules, and statutes and comprehensive index are easy to use and show the amazing breadth of topics this publication embraces. 

All in all, the ABA Section of Litigation has another winner in this publication.  The Fourth Edition is a unique publication that would be well used by any commercial litigator in federal court today.  Make sure you add this to your summer reading list.

Jennifer L. Parent is a director and chair of the litigation department at McLane Middleton, Professional Association, NHBA Board of Governors Delegate to the ABA, and a past president of NHBA.

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