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Business and Commercial Litigation in Federal Courts


Business and Commercial Litigation in Federal Courts is unique in four respects: its extraordinary author team; its focus on business and commercial litigation; its pervasive emphasis on the strategic issues and options that determine success or failure; and its inclusion of federal practice and procedure, substantive law, and litigation tactics and techniques, all in one package.

This set is designed to fill a significant void in the legal literature with a sophisticated work that captures the insights and expertise of the finest litigators in the United States. By utilizing the talents of those noted for their special skills in handling particular kinds of commercial litigation as well as those noted litigators whose practice includes a variety of commercial cases, Business and Commercial Litigation in Federal Courts serves as a blueprint for effective litigation.

The Section of Litigation of the American Bar Association has sponsored and inspired this publication. A select group of highly experienced attorneys and judges was invited to author chapters. More than 700 volunteered. As many as 122 offered to write a single chapter and 50-75 volunteered for many of the others. This remarkable willingness to respond when called upon to help reflects the affection and high esteem in which the Section is held by its members.

This publication was written by distinguished federal judges and the cream of the commercial litigation bar, the best lawyers practicing in the federal courts of this nation. They come from all parts of the United States and are diverse in their particular expertise; nevertheless, all were united in their commitment to share with lawyers everywhere the secrets of their craft that distinguish the truly outstanding members of our profession. As a result, this publication is a goldmine of insights and advice about the dynamics of commercial litigation and how to apply expert lawyering skills and techniques to the specific case at hand to achieve client objectives. The size, scope, depth and sophistication of the chapters attest to the generosity of these renowned authors. Despite the press of business and other commitments, the 152 authors of this set completed their chapters on schedule, enabling completion of this monumental six volume, 7,000 page work within one year after the solicitation of authors. The Section of Litigation and commercial litigators everywhere owe them a debt of gratitude. We are grateful as well to their law firm, many of the finest firms in the country, for the extensive support and resources they provided. Thus, this work reflects the efforts and significant contributions of many hundreds of talented lawyers and their staffs.

I particularly thank the federal judges who have graciously shared their valuable time and have given us the invaluable perspective of the bench. They include Judges Harold Baer, Jr., James G. Carr, Warren W. Eginton, David Hittner, William C. Lee, M. Margaret McKeown, Solomon Oliver, Jr., Randall R. Rader and Roger Vinson. I thank as well two particularly distinguished former federal judges, Marvin E. Frankel and Federick B. Lacey.

The enthusiasm of the American Bar Association and of the Section of Litigation for this project is reflected in the generous participation of its leadership. Authors who are former Presidents of the American Bar Association include N. Lee Cooper, John J. Curtin, Jr., and Robert D. Raven. Authors who are former Chairs of the Section of Litigation include (in addition to Messrs. Cooper and Curtin) Paul J. Bschorr, Benjamin R. Civiletti, Barry F. McNeil, Robert N. Sayler and Barbara M.G. Lynn, the Section's Chair-Elect. We are particularly pleased to have been joined in this venture by those who have rendered distinguished public service to this country including Warren Christopher and Benjamin R. Civiletti.

Business and Commercial Litigation in Federal Courts is a unique contribution to legal literature. There are other books on federal practice and procedure but no other publication focuses on business and commercial litigation. Business litigation is typically more complex than other kinds of litigation. It often involves technical, arcane subjects unfamiliar to many lawyers and most certainly to jurors, complex issues and subtleties as well as ramifications that may extend far beyond any particular lawsuit. It frequently presents complex arrangements of parties and law firms, often in different jurisdictions and requiring application of the law of additional jurisdictions, voluminous documents, sometimes numbering into the millions, large amounts of money and sometimes even the viability of major companies hang in the balance. Furthermore, federal courts are not the place to learn as you go, by trial and error. The magnitude of the cases in dispute causes judges and clients alike to expect from all participants commensurate knowledge and skill. Unlike many other forms of litigation, commercial litigation is largely at the behest of corporate clients. Corporate America increasingly and justifiably demands high quality, strategically focused and cost effective litigation from the lawyers who do battle on its behalf. Business and Commercial Litigation in Federal Courts can help meet these needs.

Practitioners have heretofore had to apply general principles of law and practice to the special challenges of commercial litigation. Now readers can be guided by a work that does not oversimplify but which specifically and candidly confronts the opportunities, problems and pitfalls of commercial litigation and supplies strategies and solutions. Authors were continually challenged to share their insights into the issues and problems that worried them most about their cases-that woke them up at night during trials. This work is permeated with these innermost thoughts.

Although many commercial litigators specialize in particular fields, many other commercial litigators handle cases in a variety of substantive areas. Deft handling of diverse litigation requires mastery of substantive law but also understanding of the application of litigation strategies and techniques to those substantive areas. For that reason this publication includes 28 chapters covering the kinds of business and commercial litigation most commonly encountered in federal courts written by litigators chosen to author those chapters because of their special expertise in those fields. Each such chapter guides the reader step by step with a nuts and bolts exposition on the law, procedure and practice in the field including delineation and achievement of objectives; the first considerations in assessing a case and how to proceed; the factors that would influence choice of strategy; steps to advance or secure the positions of both plaintiff and defense; the information necessary to planning trial or settlement strategy; characteristic problems and their solutions; issues to raise with clients; and considerations regarding discovery, motion practice, expert and lay witnesses, trial preparation, trials, and other matters that are unique to the field of law under discussion.

Business and Commercial Litigation in Federal Courts is a self-contained library with everything needed to handle a commercial case. It was painstakingly designed to provide readers with rapid access to this wealth of information. In addition to text on law, procedure and litigation strategies, special features include procedural and practice checklists, checklists of essential allegations and defenses, checklists of sources of proof of essential allegations and defenses, cross references from checklists to text, litigation forms and jury charges. The format makes the information equally accessible and useful for the commercial litigator when he needs an immediate answer as when he has the luxury of several hours to read and learn at leisure. Special finding tools include tables of contents, as well as tables of sections, cases (including the full citations of the 25,000 cases cited), statutes, rules, forms and jury instructions. The forms and jury charges are also contained on computer disks that accompany this set so that they may be easily adapted for particular cases.

This publication is a joint endeavor of the Section of Litigation and West Group. All royalties from this publication go to the Section of Litigation.

Marilyn Minzer of the West Group deserves our special thanks for her extraordinary efforts. She worked closely with me and with the authors in every facet and stage of this project. Her commitment to excellence has been a source of inspiration. It is no exaggeration to say that this worthwhile project could not have been completed without her diligence, expertise and guidance.

I feel privileged to have served as Editor-in-Chief of this publication. In that role I reviewed and commented on the chapters of all of the authors. Throughout I was impressed by the creativity of this magnificent team of volunteer litigators and judges. Their accumulated wisdom made this an educational experience for me far beyond what I could have hoped for. In the best traditions of our profession, our authors have created a significant work which will be a lasting credit to the Section of Litigation. I am grateful for the opportunity to have participated.


June 1998

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