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Product Information Bulletin
Business and Commercial Litigation in Federal Courts


Table of Contents
Business and Commercial Litigation in Federal Courts

Summary
Business and Commercial Litigation in Federal Courts

This six volume work, a joint project of West Group and the ABA Section of Litigation, (all royalties go to the ABA), written by 152 of the best attorneys and judges in the United States, gives the commercial litigator all in one package everything he or she needs to know about handling every aspect of a commercial case from the assessment that takes place at the very inception, through the pleading and discovery stages, through motions, trial, post trial and appeal. The set provides comprehensive discussion of each procedural step in the lawsuit with emphasis on strategic considerations that are specific to commercial cases as well as a complete explication of the rules and requirements. Sample forms are provided as well as procedural checklists for quick references.

Eight chapters describe expert and insightful techniques for winning commercial trials. The trial materials are followed by in depth coverage of appellate practice. This unique publication also contains comprehensive textual treatment of the 28 substantive areas of law that commercial litigators are most likely to encounter, including extensive case citations, checklists, forms and jury charges. Covered as well are compensatory and punitive damages as well as other remedies. The set also includes two Word Perfect disks containing 349 litigation forms and 319 jury instructions. The set was designed to accompany Wright & Miller and includes thousands of references to Wright & Miller as well as Key Numbers.

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Press Release Information
Business and Commercial Litigation in Federal Courts 152 Authors, ABA and West Group Produce 6 Volume Work

Release:

Immediate
Contact:

Marcia Kladder
Online:

www.abanet.org/media/news.html
Phone:

312/988-6133
E-mail:

kladdenn@staffabanet-org
Contact:

Molly Ready, West Publishing
Phone:

1/800-328-7990 ext.74052

CHICAGO, October 5, 1998 -- The ABA and West Group have announced the joint publication of an unprecedented six volume work entitled Business and Commercial Litigation in Federal Courts.

The volumes were written by distinguished federal judges and an array of lawyers practicing in U.S. federal courts. Robert L. Haig of New York City served as Editor-in-Chief. A select group of highly experienced lawyers 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. As a result, this publication is a unique collection 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.

Business and Commercial Litigation in Federal Courts is a treatise, litigation and drafting guide covering all phases of a commercial lawsuit in federal courts, from inception through trial to enforcement of judgment. The set proceeds chronologically through the lawsuit, offering discussion of procedure, legal principles, practical advice and strategy specifically pertaining to commercial litigation.

The volumes also contain chapters on 28 of the most common types of commercial litigation in federal courts, such as securities, antitrust, intellectual property, product liability, letters of credit, sale of goods, professional liability, franchising, contracts and employment discrimination, including both substantive law and litigation strategy in those types of actions.

Each chapter is practice-oriented and contains checklists, practice pointers, narrative discussion of liability, defenses, and damages, as well as case summaries, forms, jury charges, and other features that will make the information more accessible to the reader.

Also included are comprehensive chapters on compensatory and punitive damages, specific performance and rescission, provisional remedies, sanctions, costs and disbursements, and court-awarded attorneys' fees. Thousands of statutes and rules and 17,299 cases are cited.

There is in depth treatment of discovery, including chapters on discovery strategy and privileges, depositions, requests for production of documents, requests for admissions, and interrogatories as well as on motion practice. Additional chapters cover settlement techniques, ADR and the enforceability of arbitration clauses in contracts. Eight trial chapters cover each stage of the trial plus evidence, use of expert witnesses, and jury conduct, instructions and verdicts. Following the trial chapters are detailed chapters on appeals to the Courts of Appeals and the United States Supreme Court.

"This set gives advice from the top litigators from the top firms in the United States and distinguished federal judges, three former presidents of the ABA, six former chairs of the Section of Litigation and the current chair, as well as former statesmen such as Warren Christopher and Benjamin R. Civiletti," explains Editor-in-Chief Robert L. Haig.

Business and Commercial Litigation in Federal Courts contains approximately 6,700 pages, with 349 forms and 319 jury charges included in print and on accompanying WordPerfect diskettes. The set price is $480; ABA members receive a 15 percent discount. To order call 1-800-328-9352.

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Fact Sheet
Business and Commercial Litigation in Federal Courts
Robert L. Haig, Editor-in-Chief

Everything you need to know, from 152 stellar experts.

This six volume work provides commercial litigators with an all-in-one comprehensive discussion of procedural rules and substantive law as well as strategies for implementation. It enables you to handle a wider range of cases, achieve your litigation objectives and manage cases more efficiently. The expertise of top litigators and distinguished judges throughout the United States is shared in this extraordinary resource.

This 80-chapter set contains:

  • Coverage of every phase of a commercial case, from the assessment that takes place at the very inception, through pleading and discovery stages, motions, trial, post trial and appeal
  • Extensive emphasis on discovery rules and strategy including chapters on depositions, document requests, interrogatories and requests for admissions
  • Eight chapters devoted to techniques & themes particularly effective during each phase of commercial trials
  • Twenty-eight substantive law chapters on securities, antitrust, insurance, intellectual property, franchising, professional liability, products liability, sale of goods, contracts, employment discrimination and other commercial topics
  • Full coverage of remedies with chapters on compensatory damages, punitive damages, specific performance and rescission, provisional remedies, court-awarded attorneys' fees, costs and disbursements, and sanctions
  • Settlement techniques, alternative dispute resolution, enforceability of arbitration clauses in contracts
  • Thousands of statutes & rules and 17,299 cases cited
  • 349 essential litigation forms & 319 jury charges in print and on timesaving WordPerfect computer disks
Special features:
  • Procedural checklist
  • Practice checklists
  • Checklists of Essential Allegations and Defenses
  • Checklists of Sources of Proof of Essential Allegations and Defenses
  • Illustrative pleadings
  • Jury charges and more!

Editor-in-Chief:

Robert L. Haig, a partner in Kelley Drye & Warren LLP, is Co-Chair of the Commercial Courts Task Force appointed by New York's Chief Judge to create the Commercial Division of the New York State Supreme Court.

Business and Commercial Litigation in Federal Courts is a joint project of West Group and the ABA Section of Litigation.

Six hardbound volumes with WordPerfect forms/ jury charges disks, published 1998. Thank you for your interest in Business and Commercial Litigation in Federal Courts

Chapter Titles and Authors
Business and Commercial Litigation in Federal Courts

Editor-in-Chief
Robert L. Haig
Kelley Drye & Warren LLP

Subject Matter Jurisdiction
by Blake Tartt
Fulbright & Jaworski LLP

Personal Jurisdiction and Service
by Frank Cicero Jr., Kirkland & Ellis
Suzanne E. Tracy, Smith Silbar Parker & Wolffenden

Venue, Forum Selection and Transfer
by Gary P. Naftalis, Michael S. Oberman
Kramer, Levin, Naftalis & Frankel

Investigation of the Case
by Bart M. Schwartz
Decision Strategies/Fairfax International Andrew B. Melnick

The Complaint
by Francis B. Burch Jr., James D. Mathias, Glen K. Allen
Piper & Marbury LLP

Responses to Complaints
by Clyde A. Szuch
Pitney, Hardin, Kipp & Szuch

Third-Party Practice
by Edward P. Leibensperger
Nutter, McClennen & Fish LLP

Removal to Federal Court
by Hon. Roger Vinson
Chief Judge, United States District Court, Northern District of Florida

Arbitration vs. Litigation:
Enforceability and Access to Courts

by Robert D. Raven, Kathleen V. Fisher, James M. Schurz
Morrison & Foerster LLP

Joinder, Consolidation, and Severance
by Wayne E. Babler Jr., Peter C. Karegeannes
Quarles & Brady

Multidistrict Litigation
by John L. Strauch, Robert C. Weber
Jones, Day, Reavis & Pogue

Issue and Claim Preclusion
by H. Robert Fiebach, Douglas R. Widin, James E. Brown
Cozen and O'Connor

Provisional Remedies
by Paul H. Dawes, William J. Meeske
Latham & Watkins

Parties
by Samuel Adams, James J. Arguin
Warner & Stackpole LLP

Class Actions
by John F.X. Peloso, Peter Buscemi, James D. Pagliaro
Morgan, Lewis & Bockius LLP

Derivative Actions by Stockholders
by John L. Warden, Garrard R. Beeney
Sullivan & Cromwell

Litigating International Disputes in Federal Courts
by Warren Christopher, Louis B. Kimmelman
O'Melveny & Myers LLP

Discovery Strategy and Privileges
by Paul J. Bschorr, John F. Collins
Dewey Ballantine LLP

Depositions
by Patrick Lynch
O'Melveny & Myers LLP

Document Discovery
by James W. Quinn, Mindy J. Spector
Weil, Gotshal & Manges LLP

Interrogatories
by Hon. Marvin E. Frankel, Arthur H. Aufses, III
Kramer, Levin, Naftalis & Frankel

Requests for Admissions
by James E. Coleman Jr., Barbara M.G. Lynn
Carrington, Coleman,Sloman & Blumenthal LLP

Selection of Experts, Expert Disclosure and the Pretrial Exclusion of Expert Testimony
by N. Lee Cooper
Maynard, Cooper & Gale, P.C.
Stephen F. Humphreys
Kilpatrick Stockton LLP

Motion Practice
by William F. Alderman, W. Reece Bader
Orrick, Herrington & Sutcliffe LLP

Summary Judgment
by Hon. Solomon Oliver Jr.
United States District Judge, Northern District of Ohio

Magistrate Judges and Special Masters
by Hon. Frederick B. Lacey, Jay G. Safer
LeBoeuf, Lamb, Greene & MacCrae

Scheduling and Pretrial Conferences and Orders
by Hon. William C. Lee
Chief Judge, United States District Court,
Northern District of Indiana

Settlements
by Charles E. Patterson, Bruce A. Ericson
Pillsbury Madison & Sutro LLP

Jury Selection
by Hon. David Hittner
United States District Judge,
Southern District of Texas

Eric J.R. Nichols
Beck, Redden & Secrest

Motions In Limine
by Anton R. Valukas, William A. Von Hoene Jr., Thomas S. O'Neill
Jenner & Block

Trials
by John J. Curtin Jr., John R. Snyder
Bingham Dana LLP

Opening Statements
by David M. Brodsky
Schulte Roth & Zabel LLP

Presentation of the Case in Chief
by Frank Rothman, William P. Frank, Jay S. Berke
Skadden, Arps, Slate, Meagher & Flom LLP

Cross-Examination
by Edward L. Foote
Winston & Strawn

Expert Witnesses
by Barry F. McNeil, Noel M.B. Hensley
Haynes and Boone

Evidence
by George A. Davidson, William R. Maguire
Hughes Hubbard & Reed LLP

Final Arguments in Jury and Bench Trials
by Robert S. Warren, Robert E. Cooper, Thomas E. Holliday
Gibson, Dunn & Crutcher LLP

Jury Conduct, Instructions and Verdicts
by Hon. James G. Carr
United States District Judge, Northern District of Ohio
G. Marc Whitehead
Sonnenschein Nath & Rosenthal

Compensatory Damages
by Benjamin R. Civiletti, David W. Goewey
Venable, Baetjer and Howard LLP

Punitive Damages
by Andrew L. Frey, Evan M. Tager
Mayer, Brown & Platt

Specific Performance and Rescission
by Michael D. Goldman
Potter, Anderson & Corroon

Alternative Dispute Resolution
by Hon. Harold Baer Jr.
United States District Judge, Southern District of New York

Trial and Post-Trial Motions
by Charles H. Dick Jr.
Baker & McKenzie

Judgments
by Fredric C. Tausend, David H. Binney
Preston Gates and Ellis LLP

Bankruptcy Code Impact on Civil Litigation in the Federal Courts
by Lewis Kruger, Brian M. Cogan
Stroock & Stroock & Lavan LLP

Court-Awarded Attorneys' Fees
by Hon. M. Margaret McKeown
United States Circuit Judge, Ninth Circuit
David J. Burman
Perkins Coie

Costs and Disbursements
by John H. McElhaney
Locke Purnell Rain Harrell, P.C.

Sanctions
by Charles M. Shaffer Jr., Daniel J. King
King & Spalding

Appeals to the Courts of Appeals
by Stephen Rackow Kaye, Ronald S. Rauchberg
Proskauer Rose LLP

Appeals to the Supreme Court
by Kenneth S. Geller, John J. Sullivan, Alan E. Untereiner
Mayer, Brown & Platt

Enforcement of Judgments
by Carolyn B. Lamm
White & Case

Ethical Issues in Commercial Cases
by Harry M. Reasoner, Allan Van Fleet, Edward A. Carr
Vinson & Elkins LLP

Antitrust
by John H. Shenefield, Peter E. Halle, William E. Wallace, III
Morgan, Lewis & Bockius LLP

Securities
by Richard M. Phillips, Jeffrey B. Maletta
Kirkpatrick & Lockhart LLP

Professional Liability
by Daniel F. Kolb, Jerome G. Snider
Davis Polk & Wardwell

Admiralty
by Robert B. Acomb Jr., John J. Broders
Jones, Walker, Waechter, Poitevent, CarrÈre & DenÈgre LLP

Contracts
by Mark A. Belnick, Robert S. Smith
Paul, Weiss, Rifkind, Wharton & Garrison

Insurance
by Robert N. Sayler, Mitchell F. Dolin, Anna P. Engh
Covington & Burling

Banking
by Thomas McGanney
White & Case

Letters of Credit
by Harvey I. Saferstein,
Thomas J. Hall
Fried Frank Harris & Jacobson
Chadbourne & Parke LLP

Collections
by R. Franklin Balotti, Frederick L. Cottrell, III
Richards, Layton & Finger, P.A.

Communications
by Richard E. Wiley, R. Michael Senkowski, Jeffrey S. Linder
Wiley, Rein & Fielding

Patents
by Hon. Randall R. Rader
United States Circuit Judge, Federal Circuit
Professor Martin J. Adelman
Wayne State University Law School
Professor Harold C. Wegner
George Washington University Law School

Trademark
by Robert J. Jossen, Louis M. Solomon
Swidler, Berlin, Shereff, Friedman LLP

Copyright
by D. Alan Rudlin, Douglas W. Kenyon
Hunton & Williams

Labor Law
by Clifford R. Oviatt Jr., W. Carter Younger
McGuire, Woods, Battle & Boothe LLP

Employment Discrimination
by Joan A. Lukey
Hale and Dorr

ERISA
by Stephen A. Weiner, Frederick A. Brodie
Winthrop, Stimson, Putnam & Roberts

RICO
by Jerold S. Solovy, R. Douglas Rees
Jenner & Block

Products Liability
by Hon. Warren W. Eginton
United States District Judge, District of Connecticut

Agency
by Harry P. Trueheart, III
Nixon, Hargrave, Devans & Doyle LLP

Warranties
by John L. Amabile
Putney, Twombly, Hall & Hirson

Theft or Loss of Business Opportunities
by Mark H. Alcott
Paul, Weiss, Rifkind, Wharton & Garrison

Sale of Goods
by James R. Adams, Richard M. Goehler
Frost & Jacobs LLP

Bills and Notes
by Frank N. Gundlach, Thomas Cummings
Armstrong, Teasdale, Schlafly & Davis

Torts of Competition
by John M. Callagy, Richard E. Donovan
Kelley Drye & Warren LLP

Franchising
by John A. Donovan
Skadden, Arps, Slate, Meagher & Flom LLP

Construction
by James C. Moore
Harter, Secrest & Emery

Energy
by Gary W. Davis, Harry A. Woods Jr., Jimmy Goodman
Crowe & Dunlevy

Environmental Claims
by Carol E. Dinkins, Arthur E. Murphy
Vinson & Elkins LLP

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Summary of Features
  • An "All-in-One Set" Covering Strategy, Pre-Trial Practice and Procedure, Trial Techniques, Evidence, Appeals, Substantive Law, Damages and Remedies, (80 different subjects) Forms, Checklists, Jury Charges, and Forms on Disk, many thousands of case citations and case summaries and thousands of citations to statutes. This set was designed with the intention of providing the commercial litigator with a desk set that would give quick access to everything needed for his or her cases, no matter the juncture in the litigation process.
  • A wealth of information with 17,299 cases cited. Thousands of references to Wright & Miller as well as Key Numbers.
  • Advice from the Superstars. The 152 authors are top litigators from the top firms in the United States as well as distinguished federal judges.
  • The checklists (procedural, essential allegations and defenses, and sources of proof of essential allegations and defenses) are intended to serve as summaries to provide quick answers. The cross references in the checklists lead the reader to relevant provisions in rules and statutes and to the relevant section of the textual discussion in the chapter, for more in depth treatment.
  • 349 Forms and 319 Jury Instructions in print and on computer disks that come with the set.
  • The scope of the set is vast. Attorneys would have to buy many sets to obtain the information that is contained in this publication. A federal civil procedure set, a federal legal encyclopedia, a federal trial practice set and a federal form set, and numerous substantive treatises would be a start but these would still lack the commercial litigation perspective and the expertise of the "Superstar" lawyers and judges who are our authors.
  • There are many chapters in this set that are unlikely to be found in federal civil procedure sets, federal legal encyclopedias, forms sets or substantive treatises. These include discussions of Investigation of the Case, Removal to Federal Court, Enforcement of Judgments, Arbitration vs. Litigation: Enforceability and Access to Courts, Derivative Actions by Stockholders, Litigating International Disputes in Federal Courts, Bankruptcy Code Impact on Litigation in the Federal Courts, and Ethical Issues in Commercial Cases.

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Features and Benefits
Business and Commercial Litigation in Federal Courts

F: Comprehensive coverage in 80 chapters (6,690 pages) of pre-trial and appellate practice and procedures as they are implemented in commercial actions, commercial trial advocacy, substantive law on a wide variety of commercial subjects, plus litigation forms and jury charges (in print and on WordPerfect disks).

B: Find all the answers in one convenient publication, designed for accessibility. Saves time and money by eliminating the need to buy or research in several different publications.

F: Written by a hand picked team of 152 of the most well respected commercial litigators and federal judges.

B: Readers gain the benefit of the expertise and perspective of seasoned litigators to assist them in selecting the best of alternative courses of action and in selecting the best means for achieving their objectives. The set is practice oriented and strategic advice relevant to commercial litigation in general and to specific kinds of commercial actions runs throughout the entire set.

F: In depth textual treatment of the FRCP, court rules and case law governing each stage of a law suit.

B: Authoritative, detailed discussion of the procedural rules and requirements explains each step that must be taken and avoids error or oversight.

F: Discussion of procedural rules and requirements of pleadings as well as litigation risk analysis and an insightful discussion of strategies which govern the many responses and options available to a lawyer from point of retention.

B: Enhance the likelihood of an early favorable disposition of the case by making strategic moves that put your best foot forward. Procedural Checklists for quick reference; forms on disk save drafting time.

F: Extensive treatment of discovery including separate chapters on procedures and strategies concerning depositions, document discovery, requests for admissions, interrogatories and an overview chapter explaining how to create a coordinated discovery plan as well as protecting privileged information from disclosure.

B: The vast majority of commercial litigations are settled before trial, often as the result of information that is revealed in discovery. Learn effective use of discovery devices to the advantage or protection of your client.

F: Examination of the statutes, rules and doctrines governing removal from state to federal court including the discussion of reasons to remove and strategies for defeating removal, with checklists and forms.

B: You can make a reasoned analysis of the advantages of each forum and increase the likelihood that your actions, rather than your opponents will determine where the suit is tried.

F: Individual chapters on provisional remedies, rescission and specific performance as well as punitive damages and compensatory damages including discussion of practical considerations, strategy and forms.

B: Helps insure that all available remedies are taken into consideration in prosecuting or defending actions and are sought or resisted in the most effective manner.

F: Settlement strategy including suggestions for successful negotiating and for reducing the agreement to writing including contractual language in print and on disk.

B: Position your case so that it can be settled for the right amount at the right time; facilitates drafting of an agreement that will conclude the dispute and that is quickly and easily enforceable.

F: Only complete exposition on the trial of a commercial case including jury selection, opening statements, presentation of the case in chief, cross examination, final argument, jury charges as well as in depth discussion of admissibility of evidence in commercial cases.

B: There are many significant differences between the trial of a commercial case and other types of cases. Learn to formulate an effective trial game plan, to develop themes, to focus the trier of fact's attention on key issues, prepare and present expert and lay witnesses so that their testimony is understandable and convincing and enhance your ability to influence and persuade.

F: Chapter on Appeals to the Courts of Appeals and chapter on Appeals to the Supreme Court written by renowned appellate advocates.

B: Authoritative discussion of statutes and court rules with checklists and extensive forms in print and on disk saves time and ensures against any missteps in taking and perfecting appeals and in oral argument.

F: 28 Substantive law chapters covering Antitrust, Securities, Professional Liability, Admiralty, Contracts, Insurance, Banking, Letters of Credit, Collections, Communications, Patents, Trademark, Copyright, Labor Law, Employment Discrimination, ERISA, RICO, Products Liability, Agency, Warranties, Theft or Loss of Business Opportunities, Sale of Goods, Bills and Notes, Torts of Competition, Franchising, Construction, Energy, Environmental Claims as well as a chapter on Bankruptcy Code Impact on Litigation in the Federal Courts. Each chapter contains a discussion of preliminary strategy, extensive discussion of liability, defenses and damages with extensive citation to authority.

B: Have at you fingertips substantive information on the most commonly encountered areas of commercial litigation. 17,299 cases cited saves hours of research time and the expense of buying multiple publications.

F: Each of the 28 substantive chapters contains checklists of essential allegations and defenses (with cross references into the text for more extensive discussion), checklists of sources of proof of essential allegations and defenses, forms and jury charges, in print and on disks.

B: Fast answers to help you quickly assess your case and guide your discovery. Save time in preparing and responding to pleadings and in preparing jury charges.

F: 349 litigation forms and other forms such as settlement agreements, arbitration agreements, client letters, etc. as well as 319 jury charges on all substantive areas covered. These forms and jury charges are provided in print and on complimentary WordPerfect disks.

B: Save drafting time and expense and insure that your documents are accurate.

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How Business and Commercial Litigation in Federal Courts Can Benefit You and Your Practice

Save Time and Money
Find all of the answers in one convenient publication, designed for accessibility. Comprehensive coverage in 80 chapters (6,690 pages) of pretrial and appellate practice and procedures as they are implemented in commercial actions, commercial trial advocacy, substantive law on a variety of commercial subjects, plus 349 litigation forms and 319 jury charges (in print and on WordPerfect disks).

Increase Your Potential for Success
Gain the benefit of the expertise and perspective of 152 of the most well respected commercial litigators and judges in the nation to assist in delineating objectives and the best means to attain them. Strategic advice relevant to commercial litigation in general and to specific kinds of commercial actions runs throughout the entire set.

Gain an Early Advantage
The vast majority of cases are settled before trial, often as the result of information that is revealed in discovery. Learn effective use of discovery devices to the advantage or protection of your client. Procedures and winning strategies are discussed in separate chapters on depositions, document discovery, requests for admissions, interrogatories and an overview chapter explaining how to create a coordinated discovery plan as well as protecting privileged information from disclosure.

Win at Trial
Learn the trial techniques that are particularly effective in commercial cases. Formulate an effective trial game plan, develop themes, focus the trier of fact's attention on the key issues, prepare and present expert and lay witnesses so that their testimony is understandable and convincing, present documents and statistics in the most understandable and interesting ways and enhance your ability to influence and persuade.

Increase the Scope of Your Practice
28 substantive law chapters covering Antitrust, Securities, Professional Liability, Admiralty, Contracts, Insurance, Banking, Letters of Credit, Collections, Communications, Patents, Trademark, Copyright, Labor Law, Employment Discrimination, ERISA, RICO, Products Liability, Agency, Warranties, Theft or Loss of Business Opportunities, Sale of Goods, Bills and Notes, Torts of Competition, Franchising, Construction, Energy, Environmental Claims as well as a chapter on Bankruptcy Code Impact on Litigation in the Federal Courts. Each chapter contains a discussion of preliminary strategy, extensive discussion of liability, defenses and damages with thousands of cases cited as well as checklists of essential allegations and defenses, checklists of sources of proof of essential allegations and defenses, forms and jury instructions.

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Three Typical Problems or Questions Faced by Attorneys, and How this Set Will Help Resolve Them

How should I construct an overall discovery strategy so as to maximize the efficient discovery of relevant information while minimizing costs and inefficiencies?

One of the most costly and time consuming aspects of any commercial case is the discovery process. Discovery in commercial cases is particularly challenging because of the vast quantities of documents typically involved, because it is closely regulated by the Federal Rules of Civil Procedure and because sanctions are frequently imposed for noncompliance and for discovery abuse. Business and Commercial Litigation in Federal Courts contains individual chapters on each available discovery device including Depositions, Document Discovery, Requests for Admissions and Interrogatories as well as a chapter on Discovery Strategy and Privileges which discusses the creation of a discovery plan. Each of these chapters discusses not only the most effective use of the particular discovery device at issue but also how to use that device in conjunction with other available discovery devices to maximize efficiency. Coverage also includes automatic disclosure required by the FRCP, use of computer technology to facilitate document production, responding to improper discovery requests, ethical means of protecting information from discovery, the preservation of attorney-client privileges, as well as a separate chapter on Investigation of the Case that discusses informal discovery methods to assist in formal discovery.

What motion practice, if any, should I employ?

Motion practice is an expensive and time consuming pretrial procedure as well as a procedure that can be utilized during trial and even post trial. There are dozens of possible motions that a litigator can make. Motion practice can be used to dispose of the case in its entirety at the outset of the litigation, to prevent or require a party to do something or refrain from doing something before there is even any decision on the merits of a case, to shape discovery or to force or resist compliance with discovery requests, to prohibit the introduction of various kinds of evidence, to divide the lawsuit into two or more phases for trial and it can be used to overturn the verdict. Like discovery, motion practice is expensive and time consuming, however, unlike discovery which is required in every case, motion practice is discretionary. It is not appropriate for every case and there are sanctions for its frivolous use, however, motion practice when used appropriately and skillfully can favorably affect the outcome of a case (sometimes bringing swift victory), the timing, costs, the protection of confidential information, and virtually every aspect of the case. Business and Commercial Litigation in Federal Courts contains separate chapters on the strategy of motion practice in general as well as chapters on Summary Judgment, Provisional Remedies, Motions In Limine, Trial and Post Trial Motions, Sanctions, as well as treatment of motion practice in other relevant procedural and substantive chapters. These chapters not only discuss the procedural rules applicable to these motions but also discuss the strategy for enhancing the likelihood that the motion will be granted as well as the strategy for resisting the motion.

What is distinct about commercial trials in comparison to other civil actions and what is the best strategy for success?

Business and Commercial Litigation in Federal Courts contains separate chapters on each phase of the trial of a law suit including jury selection, opening statement, presentation of the case in chief, cross examination as well as chapters on evidence, expert witnesses and jury conduct, instructions and verdicts. Each of these chapters was written by a noted practitioner or federal court judge who shared their expertise to give insightful advice that is particularly relevant to commercial trials and the challenges that trial lawyers face due to the technical nature of the evidence in commercial cases, the need for expert testimony and the vast numbers of documents that will often have to be discussed or introduced into evidence.

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How Business and Commercial Litigation in Federal Courts Can Assist Corporate Counsel in Fulfilling Their Principal Roles

A principal role of corporate counsel:
Working with outside counsel after a lawsuit has been commenced

How this set could assist in fulfilling that role:
This set contains detailed analysis of practical and strategic considerations affecting each phase of the litigation. Particularly instructive for the pre-trial phase are the chapters on The Complaint and on the many potential Responses to Complaints; these portions of the text not only discuss the procedural rules but also analyze in detail the practical considerations of each decision. The detailed information about Discovery facilitates managing this time consuming and expensive aspect of litigation. The chapter on Third-Party Actions can assist counsel in determining whether the potential advantage of sharing liability and litigation expenses is overcome by the diffusion of effort that may occur when the corporation must simultaneously defend against plaintiff's claims while establishing its rights against the third-party defendant. Joinder, Consolidation and Severance should be consulted to determine the most beneficial alignment of litigants and how to achieve this posture.

Business and Commercial Litigation in Federal Courts also contains an authoritative chapter on Venue and another on Removal to Federal Court that not only discusses the procedural steps but also analyzes the reasons to remove, the reasons to fight removal and how best to achieve those goals. The chapters on Motion Practice and Summary Judgment will assist corporate counsel in determining whether the costs and delays of motion practice are offset in a particular case by the likelihood of success or by other factors. The chapter on Provisional Remedies discusses strategy, as well as the FRCP requirements that govern the remedies available to afford security or protection to a moving party during the pendency of an action. This chapter will assist in-house counsel in evaluating what to seek and the likelihood of success in defending against applications for provisional remedies.

The 8 trial chapters combine to form a detailed and thoughtful analysis of commercial trial advocacy. In-house counsel working with outside counsel in the conduct of a trial can gain valuable insights from these chapters.

A principal role of corporate counsel:
Pre-litigation advisor

How this set could assist in fulfilling that role: There are many chapters in this strategy-oriented set that corporate counsel should consult to ensure that all issues and options are fully explored. For example, the chapter on Settlement contains insightful discussion of decision analysis, negotiating strategies and the factors that must be considered in evaluating a settlement proposal and in drafting the settlement agreement. In addition, the chapter on Alternative Dispute Resolution discusses arbitration and other forms of binding and non-binding dispute resolution techniques and can assist counsel in determining whether ADR is appropriate for a particular case. The chapter on Arbitration vs. Litigation: Enforceability and Access to Courts discusses the enforceability of domestic and international arbitration agreements and awards.

Among other chapters in this extensive treatment of commercial litigation that will facilitate corporate counsel's role as pre-litigation advisor, one merits special mention because it concerns an often-overlooked issue that sometimes produces disastrous results: Issue and Claim Preclusion. These are complex doctrines whose ramifications are manifold and frequently obscure. Corporate counsel, aware of business realities and the exposure from similar litigation, must play the critical role in deciding which issues and claims should be avoided because of their substantial preclusion risk and, conversely, which may be more safely advanced.

A principal role of corporate counsel:
Advisor to internal business clients (non-litigation)

How this set could assist in fulfilling that role:
Corporate counsel called upon to advise internal business clients can readily find substantive information and answers throughout this collection. For example, even before a contract suit arises, counsel can put the corporation in an advantageous position by consulting the relevant chapters and structuring the transactions to include favorable choice of law, choice of forum and arbitration clauses. If a sales manager wants to know whether the actions of a salesman or distributor will bind the corporation, corporate counsel can predict the likely outcome by studying the chapter on Agency. If a competitor interferes with a company's relationship with its customers, in-house counsel can prepare for action by consulting Theft or Loss of Business Opportunities. If in-house counsel is called upon to design internal anti-employment discrimination or harassment policies he/she can turn to the chapter on Employment Law. When advising internal business clients about business decisions which must be made against the background of potential litigation (as they so often do), the 28 commercial law chapters can be particularly valuable; these chapters contain a wealth of authority on liability, defenses and damages, as well as sophisticated analyses of strategic issues.

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