In Husain v. Springer, (1) Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit famously began a dissent with the frank concession that he had not read the majority's opinion. He acknowledged that this was unusual and explained why. (2) In the interest of candor, I must begin my review of the Third Edition of Commercial Litigation in New York State Courts ("Commercial Litigation") (3) with a similar confession: I have not read the entire book. I too shall explain why.
Now, before the reader protests that I am not a suitable reviewer for this highly regarded treatise on commercial litigation in the New York state courts, I must point out that few, if any, individuals have read all 8,400 pages of this six-volume collection--other than perhaps the indefatigable Robert L. Haig, the distinguished Editor-in-Chief of Commercial Litigation, and some overly ambitious big-firm associates. More fundamentally, Commercial Litigation simply is not the type of work that is intended to be consumed from cover to cover. Rather, it is an encyclopedic collection of 106 chapters written by 144 well-respected principal authors, including twenty judges of the federal and state courts, as well as a who's who of New York's commercial litigation bar. (4)
Building on the first two editions, published in 1995 and 2005 respectively, the Third Edition adds 19 new chapters and substantially expands the materials from prior editions. The product of more than $25 million in attorney time over the last fifteen years, Commercial Litigation represents a massive accumulation of intellectual capital. (5) Fortunately, the editors and authors of Commercial Litigation have all volunteered their time and effort to this worthwhile endeavor, and, through a unique joint venture between West Publishing and the New York County Lawyers' Association, all royalties from the sale of Commercial Litigation flow to the bar association. (6)
Commercial Litigation provides an in-depth treatment of practice and procedure in the New York state courts as well as the most frequently encountered substantive areas of our state's well-developed body of commercial law. In addition to a comprehensive and well-organized examination of the rules of substance and procedure governing commercial cases in New York, the treatise links these rules to the strategic considerations necessary to effectively represent commercial clients. The chapters integrate step-by-step practice guides, checklists, and sample forms, resulting in a compendium of doctrine, strategy and practical advice covering every aspect of a commercial case--from investigation and assessment through pleading, discovery, motion practice, trial, appeal, and post-judgment proceedings.
I suspect that my own uses of Commercial Litigation are not uncommon. In presiding over Albany County's Commercial Division--a specialized part of Supreme Court intended to ensure the quality and efficient adjudication of commercials disputes--I hear many cases involving contracts, insurance, banking, restrictive covenants, and corporate and partnership law. Upon my assignment to the Commercial Division more than five years ago, my predecessor handed off to me his well-worn copy of the Second Edition--a mere five volumes consisting of only 5,800 pages. Over the years, that edition has served me well as a valuable reference source when confronted with thorny procedural questions or forays into unfamiliar areas of substantive law.
As useful and informative as I have found Commercial Litigation, practitioners will find it even more valuable. As a judge, the issues that come before me necessarily are framed by the pleadings, motions, evidentiary record, and arguments of counsel. Through its unique emphasis on the strategic and tactical considerations associated with commercial litigation, this treatise will assist practitioners in putting more effective and persuasive submissions before the court.
Commercial Litigation opens with an introductory chapter by Chief Judge Jonathan Lippman tracing the long history of commercial litigation in New York from Dutch colonial times to the present. (7) The historical materials draw heavily from the work of former Chief Judge Judith S. Kaye, who authored the introductory chapters of prior editions (8) and was a driving force behind the establishment of our Commercial Division. (9)
The treatise naturally places a special emphasis on the Commercial Division, with an entire chapter dedicated to its rules of practice. (10) The authors of this chapter also identify the strategic considerations associated with choosing to litigate in the Commercial Division. (11) In addition, practice pointers for litigating in the...