March 1999

Business and Commercial Litigation in Federal Courts

by Thomas Fraser

Skepticism abounded. How could any treatise address business litigation in the federal courts in a useful manner? But, once again, the Litigation Section of the American Bar Association has published a valuable resource for litigators.

Business and Commercial Litigation in Federal Courts, edited by Robert Haig, is a six-volume collection of 80 chapters by distinguished lawyers and judges on both procedural and substantive issues that daily confront the busy federal practitioner. One might expect the treatise to lack cohesion with so many different authors. But the editing is tight and the uniformity and organization of all six volumes make the books user-friendly yet authoritative.

The first three volumes cover federal court procedure. Unlike other treatises that are organized around the federal rules, this one addresses in appropriate chronological order all procedural facets of a case, from subject matter jurisdiction to enforcement of judgments and appeals. Each chapter explains its scope at the outset and concludes with helpful practice checklists and useful forms not to be found elsewhere. The target audience is broad, from the novice lawyer to the experienced practitioner seeking a quick refresher on a procedural issue or an overview of a developing area.

This is not a dry, academic treatise pondering the law nor is it a loose collection of holdings from cases. Instead, it is a bold and successful attack on each subject and related strategic issues, written from the perspective of a practicing litigator rather than a disinterested commentator. The chapter on subject matter jurisdiction covers more than the limited jurisdiction of federal courts. It explains the practical advantages of the federal forum. Similarly, the personal jurisdiction chapter addresses the subject from both the plaintiff's and defendant's perspective and tackles modern methods of communication, e.g., personal jurisdiction based on Internet contacts.

Thomas S. Fraser is a past chair of the Litigation Department at Fredrikson & Byron, P.A. and a former federal court law clerk. A graduate of Harvard Law School, he concentrates his practice in corporate and other business litigation in both federal and state courts. Tom is also an arbitrator and mediator.

"fills a big gap in the business litigators' library"

The orientation to federal courts manifests itself in many ways. The discussion of venue considers the vexing question of how to determine the winner of the race to the courthouse in different states - which lawsuit gets priority? This chapter analyzes whether an anticipatory declaratory judgment action invokes the "first to file" rule.

Many of the subjects addressed are surprising because similar treatises omit them. For example, an entire chapter is devoted to pre-trial investigation. This is not intended as a Rule 11 reminder. Rather, it successfully alerts the reader to many readily accessible sources of information that are uniquely helpful to the commercial litigator. Commercial databases and Internet sites are listed. The same chapter also covers tape recording of interviews, the self-evaluative privilege, and work product issues that arise during investigations.

A chapter on ethical issues in commercial cases leads into the last three volumes which cover substantive topics common (and often unique) to federal practice - from antitrust and securities to ERISA and RICO. One chapter appropriately focuses on the mushrooming torts of competition.

The identity of the authors provides comfort as to the quality of the work. Who better than former Secretary of State Warren Christopher to write on international disputes in federal courts? Similarly, a federal district judge wrote the section on removal of cases. Even the chapters written by others who may not be as well-known are illuminating.

One of the attractive features is the treatment of cutting-edge topics facing business litigators, such as Batson challenges in civil jury selection, litigation budgets demanded by clients, and experts in the post-Daubert era. The role of modern technology, the expanding presence of ADR, and the pressure from courts to streamline complex litigation (through mandatory disclosure rules and other devices) are all treated here. But much of the value of this book is derived from the experience and wisdom of the authors, which they willingly share. Witness the plea by one author that commercial litigators spend more time learning how to try a case efficiently.

The chapter on discovery strategy gives practical advice specific to business litigation. In addition, it addresses the troublesome issues of privilege in the context of joint defense agreements, and internal investigations by special counsel, as well as the modern dilemma of whether litigation support databases are discoverable.

The question arises whether the focus on federal courts limits the value of this publication. The answer is a resounding "no." Much complex business litigation is in federal court. To the extent the state courts are shouldering more of the burden, they often look to federal precedent. In Minnesota, the issue is largely moot because of the striking similarity of the state court rules to their federal counterparts, and the frequent reliance by Minnesota state courts on federal precedent in the absence of state authority.

The chapters strike a nice balance between text and footnotes, giving the reader a concise summary of the current state of the law with enough footnotes, and tie-in cites both to West key numbers and Wright & Miller sections, to pursue the matter further.

This work fills a big gap in the business litigators' library. From the summer associate to the veteran litigator, this book will be helpful to all.