Book Review – Business and Commercial Litigation in Federal Courts (4th Ed.)

Monday, July 23, 2018 - 10:56

Since its original publication in 1998, the multi-volume “Business and Commercial Litigation in Federal Courts,” now in its fourth edition, has grown exponentially. The newly issued edition is more expansive than ever, filling 15 volumes and over 17,000 pages of text. Weighing in at nearly 60 pounds, a full hard-copy set will occupy a good three feet of space on your library shelves.

As a guide to virtually every aspect of litigation practice in the federal courts, the fourth edition again laps the field in its depth, comprehensiveness and the wealth of practical tips and tools that it offers to the federal court practitioner. Published by Thomson Reuters in collaboration with the ABA Section of Litigation, this edition features 25 entirely new chapters, along with revised and updated versions of the 128 chapters in the previous edition.

Over the last two decades, digital technology has reshaped the ways in which lawyers access and use legal reference materials. While physical law libraries have dwindled, this treatise has transformed from a six-volume desk reference set into a searchable electronic encyclopedia available by subscription on Westlaw. Hyperlinks and keyword cross-references to related sections make the treatise easily navigable and provide instant access to case citations and myriad other resources, including sample forms and practical checklists. More and more libraries and practitioners are accessing this treatise exclusively online.

Technological change and its brother in arms – globalization – have also produced tectonic shifts in the law itself, as daily tremors such as Cambridge Analytica's misuse of millions of Facebook accounts, Russian hacking of the DNC, and massive privacy breaches at Equifax, Target and other major companies reverberate through our legal system. The pressure of such changes has placed a strong imprint on the treatise’s latest edition. 

The global scope of federal-court practice today is reflected in new chapters on Cross-Border Litigation (22) and International Trade (136), complementing existing chapters on Litigating International Disputes in Federal Courts (21) and core discussion of federal-court discovery (23–28). And the erosion of legal boundaries is not just geographic but substantive, as interdisciplinary chapters such as Ted Wells and Roberta Kaplan’s treatment of the Interplay Between Commercial Litigation and Criminal Proceedings (132) reflect.     

The coverage of privacy law and other tech-related areas in the fourth edition has also expanded, with an updated chapter on Privacy and Security (chapter 122) and new chapters addressing related substantive areas, from Social Media (67) to the Telephone Consumer Protection Act (TCPA) (96). The treatise's deep coverage of the nuances and ramifications of privacy law exemplifies its exhaustive approach to every aspect of federal court practice addressed in its 153 chapters.

Indeed, the treatise has arguably even begun to burst its own boundaries. The fourth edition boasts new full-length chapters on alternative dispute resolution – Negotiations (50), Mediation (51) and Arbitration (52) – as well as updated treatments of specialized areas such as International Arbitration (53) and even Broker-Dealer Arbitration (84). While these chapters pay due attention to the concerns of federal court practitioners, their in-depth discussion of the various facets of non-court ADR deserve a far wider audience. 

Similarly, the fourth edition adds invaluable chapters on Effective Trial Performance (39), by Judge Walton of the D.C. District Court, and Teaching Litigation Skills (71), complementing other chapters on practice techniques, litigation management and strategy, and even a new chapter on Marketing to Potential Business Clients (70). It is hard to imagine any in-house counsel or state-court practitioner who could not profit from consulting these resources, even if they are not personally active in the federal courts. 

The treatise’s chapters have expanded and evolved to embody a series of related topical groups that essentially comprise mini-treatises, beyond the scope of what most lawyers think of as “Business and Commercial Litigation in Federal Courts.” The ABA and the treatise’s long-time editor, Robert L. Haig, might even wish to consider smaller spin-off publications in the future that could attract sizable specialist audiences of their own. 

While online users may be prone to flit from "hit" to "hit" and to click on links in search of specific answers, thoughtful lawyers at all levels should note that the fourth edition is not just a spot research tool but also a deep reservoir of sustained insight and analysis by well-known sitting and retired federal judges (e.g., Judge Scheindlin on E-Discovery (26), Judge Keenan on Mass Torts (110), Judge Chang on Civil Rights (141)); “giants” of the trial bar (e.g., Evan Chesler on Trial Strategy and Advocacy [38], David Boies on Litigation Technology [66]); and innumerable other leading subject-matter experts in a host of substantive areas. Each of these chapters will reward sustained reading by any legal practitioner looking to obtain either a thorough introduction or an up-to-date refresher on an unfamiliar subject area – or a heady stimulant for ideas and strategic insight on ongoing cases.    

No matter how you choose to use it, the fourth edition of “Business and Commercial Litigation in Federal Courts” further secures the treatise’s position as the indispensable, one-stop resource on virtually every aspect of practice in our federal courts. 


P. Benjamin Duke is a litigation partner in the New York office of Covington & Burling LLP specializing in insurance-related and other complex commercial litigation. Reach him at pbduke@cov.com.

John Hartje is a dispute resolution consultant who has served as chief litigation counsel at Fortune 500 companies. Reach him at john.hartje@gmail.com.