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Hon. Ira B. Warshawsky Authors, "The Commercial Litigator’s Bible - 4th Edition" for the Touro Law Review

Aug 24, 2016Alternative Dispute ResolutionLitigation & Dispute Resolution
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A Review of the 4th Edition of Commercial Litigation in New York State Courts

In 2005, while sitting as a judge in the Commercial Division in Nassau County, I was given the opportunity to review the 2nd edition of this amazing research tool. It took me quite some time to complete my task because I found myself engulfed in reading section after section of the then-new material. Nothing has changed in that regard. If you are an admirer of quality legal writing, you, too, will find yourself drawn into these volumes.

Robert Haig’s opus is literally “the Bible,” for both the commercial practitioner and a judge of the Commercial Division. While some texts of this nature may be the starting point of your research on a particular issue of commercial law, this now eight-volume set may be the only place you need to go to get your questions answered. Admittedly, you might actually have to look up the case or statute referenced by the text, but that really doesn’t ask very much of the reader.

Robert Haig is literally a magician who has corralled 182 authors for the 4th edition of this treatise which, of course, updates the 3rd edition, but also adds 22 timely new chapters. You may have to make more room on your library shelf because the 4th edition has 2 more volumes than the 3rd.

This work continues to be an extremely valuable resource for the commercial litigator in both procedural and substantive areas of commercial law. It frequently provides insight into areas such as Motion Practice (Hon. Timothy Driscoll); Coordination of Litigation within New York between Federal and State Courts (Hon. Helen Freedman (ret.)); Preliminary and Compliance Conferences and Orders (Hon. Linda S. Jamieson), and Bills of Particulars (Hon. Deborah H. Karalunas), where the view from the bench is so very important and, normally, not easily obtained.

Upon reading through the appendix, perhaps not the first place a reviewer would examine, I found references to not only every possible New York and federal statute one could imagine having anything to do with a commercial problem, but also to the more esoteric, including the Clean Water Act, the Communications Decency Act of 1996, local rules for all the federal courts in New York State, and references to the laws of 24 other states as well as the United Nations Convention for the International Sale of Goods.

In determining where to concentrate my efforts as a reviewer, I turned to the 22 new chapters. Their titles alone reflect how the law in the commercial world has evolved in the last 5 years since the 3rd edition was published: Internal Investigations; Preliminary and Compliance Conferences and Orders; Negotiations; Mediation and Other Nonbinding ADR; Arbitration; International Arbitration; Pro Bono; Reinsurance; Workers Compensation; Trade Associations; Securitization and Structural Finance; Derivatives; Medical Malpractice [yes-you read that correctly]; Licensing; Social Media [a must read]; Tax; Land Use Regulation; Commercial Leasing; Project Finance and Infrastructure; Entertainment; Sports and Energy.

Since retiring from the bench over 4 years ago, much of my practice has been in the area of commercial mediation and arbitration. The addition of the chapters on mediation and arbitration help to complete the circle for me as far as the new edition is concerned. Where the original treatise essentially concentrated on the possible nuances and ramifications of what happens to a commercial case within the system, both federal and state, it now goes beyond such a framework.

Mediation, chapter 60, provides not only the “how-to” of the ADR process for the uninitiated but also its impact on the Commercial Division in New York. It provides a quick view into AAA, CPR and JAMS; their differences, similarities, and costs. You of course are not limited in choosing a mediator. It also explains the current “court-directed mediation” in the Commercial Division.

As found in many other chapters of this treatise, the Mediation chapter includes an excellent checklist with chapter section references and concludes with a sample term sheet which I highly recommend to mediation participants.

The arbitration section immediately zooms in on the interaction between federal law (FAA) and New York law (CPLR Article 75). It then follows a matter through the slings and arrows of an arbitration process.

Another new chapter, Medical Malpractice, surprised me by its presence. I was immediately drawn to it, just to see what it would be discussing. This is authored by Judge Karla Moskowitz of the Appellate Division, First Department, and formerly a Commercial Division judge in New York County. Prior to that assignment, she spent 9 years as a medical malpractice judge. I was impressed by what the chapter calls “preliminary considerations” for both the plaintiff’s and defendant’s counsels. The chapter then proceeds to discuss the many elements of a med mal claim, and. the various possibilities of how the statute of limitations impacts on such a claim. This is just the start of a chapter that clearly and concisely covers diverse topics that include possible defendants, litigation procedure and strategy, discovery and expert witnesses and special trial issues. As with other chapters in our treatise, there is an excellent checklist covering essential allegations and affirmative defenses. It includes a sample complaint and, perhaps most importantly, detailed jury interrogatories.

Though not a new chapter, the chapter on e-discovery has been updated and now includes a discussion on Technology Assisted Review (TAR/Predictive Coding). This terminology, a mystery to almost all commercial litigators, is made understandable and its usefulness explained. A recent survey of federal judges and practitioners relating to e-discovery pointed to the concern of the bench regarding a lack of cooperation amongst counsel in this area, while attorneys complained of a lack of competence of fellow practitioners. The study stated that too often if the litigator doesn’t understand something, then he/she thinks it’s not important enough to know. Clearly, today’s commercial litigator must have at least a basic understanding of e-discovery, and this chapter is the perfect place to start.

One of the other new sections discusses the impact of social media on almost every area of a commercial case. For those of you who do or don’t believe social media can impact on a commercial matter, this is another, not meaning to be redundant, must-read chapter.

Another new section is that on Energy. Just as we in New York use/consume all types of energy resources, so this chapter seems to cover them all, and the federal and state regulations that govern them.

Areas include hydraulic fracturing (better known as “fracking”) used in the obtaining of natural gas and oil, electric transmission siting (process for licensing electric transmission facility), natural gas and oil siting, rate disputes involving utility companies, nuclear generation concerns and load pocket issues. Though New York now has an outright ban on fracking, lawsuits related to all of the above, including toxic tort claims and nuisance actions, will continue to exist on the court’s docket in the state. All such issues are well covered in the energy chapter.

Immediately following Energy is the chapter on Environmental and Toxic Tort Litigation. This is not a new section but appropriately situated after the Energy section.

This topic is covered from the view of federal and state agencies, then civil litigation involving toxic torts. Toxic torts is a broad umbrella which is carefully reviewed in this treatise, including the controlling law in New York on expert witnesses (the ongoing battle between Frye and Daubert). You may never have an environmental or toxic tort case, but if you have an inquiring mind, just open this chapter and soak up the knowledge.

It should be clear to the reader of this review that I thoroughly enjoy the work of Bob Haig and his 182 authors. My only regret is not having the time to read it chapter by chapter. I highly recommend it.