June 2007

Treatise Is a Treat

by John Ray Nelson

Robert L. Haig, editor in chief, Business and Commercial Litigation in Federal Courts, Second Edition, ABA Section of Litigation-Thomson/West, 2005,  8 vols., hardcover, 9,000+ pp. and forms CD, $960.

My office music collection needs a new place to stay.

For almost 20 years I've kept a select collection of my favorite CDs at the end of the bookshelf immediately above my work station. Ellington and Fitzgerald, Beethoven and Bach, Phish and the Dead — these are the tunes I keep within arm's length, ready to pop in the PC to match my mood while I practice law. The rest of this eight-foot bookshelf has always been devoted to those publications I deem essential in my day-to-day work: The current rule books, the Washington Civil Procedure Deskbook and the Washington Trial Manual, a six-volume set on the Federal Rules of Evidence, and a three-volume guide to Federal Civil Procedure. Recently, however, I have decided that the music will have to go — because I need to make room for the Second Edition of the ABA Section of Litigation's treatise on Business and Commercial Litigation in Federal Courts.

This treatise is a truly awesome compilation of information for the commercial litigator. The raw statistics alone reflect the breadth and depth of its material: Eight volumes cover more than 9,000 pages and 96 different chapters by 199 of the United States' most experienced judges and practitioners. The Appendix of Tables and Index (published in paperback to facilitate its annual update) contains 998 pages of case cites. The text of the treatise includes more than 500 pages of sample jury instructions and practice forms, which are also supplied on a CD for ease of use. What the raw statistics do not reflect, however, is the pragmatism and practicality with which the treatise has been prepared — both collectively and as to individual topics.

The overall structure of the treatise reflects a practical appreciation of the interrelationship between the law of civil procedure that applies to all federal litigation and the underlying substantive law that governs in any given case. The first 60 chapters generally address procedural considerations. This part of the treatise is organized roughly along the lines of the federal rules — from jurisdiction, venue, pleadings, and parties through discovery, motion practice, trials, judgments, and appeals — which makes it easy to find material on any given procedural issue. This is not a purely technical treatment, however. For example, chapters addressing the fundamentally legal requirements of venue and the drafting of a complaint also include thoughtful discussions of the strategic considerations pertinent to the choice of forum and style of pleading, as well as thorough "checklists" to ensure a studied consideration of both legal and strategic issues. These chapters sandwich several new and more purely practical chapters on case investigation and case evaluation, providing ready reference to years of experience in the strategic "art" of commercial litigation, in addition to the law regarding the rules of procedure. This emphasis on strategy, as well as process and substance, runs throughout the treatise.

The second portion of the treatise, in chapters 61 through 96, presents thorough discussions of the law and strategy germane to the substantive topics common in federal commercial litigation. Individual chapters address topics such as Antitrust, Securities, Insurance, Banking, Patents, ERISA, and Agency, to name but a few. New chapters on Director and Officer Liability, Broker Dealer Arbitration, Partnerships, Commercial Defamation, and E-Commerce demonstrate an effort to keep the treatise on the cutting edge of federal commercial litigation. All of the chapters in the treatise are cross-referenced to West's "Key Number" Digest, as well as to the A.L.R. Library and other resources, to facilitate additional research.

In sum, this treatise is superbly designed to provide the federal commercial practitioner with both technical authority and strategic consultation regarding both the rules of litigation and the substantive topics at issue. While the price is not a pittance, I think the treatise will quickly pay for itself in reduced research time, not to mention the immeasurable value of the strategic content. As such, it's a resource I will want to have on the shelf above my desk, rather than in the library around the corner. As a consequence, I guess I'll be saying "so long" to Duke, Ella, Wolfgang, and Jerry. Then again, perhaps I can get my 12-year-old son to teach me about downloads and podcasts, and put the CDs in storage.

John Ray Nelson practices law with Foster Pepper, PLLC, in Spokane. He was chair of the WSBA Litigation Section in 2002-03, and is currently serving as a lawyer representative to the 9th Circuit Judicial Conference from the Eastern District of Washington.

Finding the Needle in Olympia's Haystack: A Searcher's Guide

by Lindsay Thompson

Greg Overstreet, editor in chief, Public Records Act Deskbook: Washington's Public Disclosure and Open Public Meetings Laws, Washington State Bar Association, 2006, 438 pp., $150.

If all WSBA publications are of the quality and value of the recently published deskbook on Washington's public records and meetings laws, WSBA's work as a legal publisher won't remain a light under a bushel.

Public Records Act Deskbook is an easy afternoon's read. While not lacking in citations to case and statute law (including a very helpful double-citation format for the Public Records Act, reflecting its homes in RCW Chapter 42.17 and more recently, in Chapter 42.56), it is written in plain English. Its editors and authors strove to make a work the individual citizen can consult and understand, and for a matter like citizen access to public information, that is a very good thing indeed.

The book reflects a fruitful partnership between the private bar and government lawyers. Washington State Attorney General Rob McKenna, a contributor to the work, has made improvement of public records access a signature issue, and is but one of a group of state lawyers drawing on their expertise to explain how — and why — practices differ from one agency to the next, and how to avoid getting bogged down by minutiae when making a public-records request. Assistant Attorney General Kristal Wiitala, who also brings a government-law perspective to the WSBA Board of Governors, has a really useful chapter on the myriad of exemptions to the public-records laws, and co-authored another chapter on the equally thorny question of access to medical information.

Court of Appeals Judge Kenneth Grosse launches the book's 21 chapters with a well-presented legislative and public-policy history of the Public Records Act. This is a useful thing, as the Watergate-era scandals, which prompted an initiative to create the law, are fading into history and out of the active memory of many people under 50. "An informed citizenry needs access to public records to have the knowledge of public issues necessary to maintain control over our government," he writes. "The voters in 1972 understood this. Courts in the intervening years have recognized the Act's purpose. Despite the Act's abundantly clear legislative intent, some agencies do not comply for a variety of reasons. The chapters that follow discuss day-to-day compliance and the methods for enforcing compliance."

I underlined that last sentence when I read it. "These folks are serious," I thought. In an age when government at all levels seems to find new and varied reasons to keep things secret — Attorney General McKenna asked the Legislature for a sunset review of PRA exemptions this year, noting that they have ballooned to more than 300 — Public Records Act Deskbook is a hands-on users' guide to getting information from state government, whether one is a lawyer or not. As such, it stands as one of the WSBA's more remarkable and successful efforts to manifest its mission to serve the people of Washington. The people who made it happen — editor in chief Greg Overstreet; senior editors Signe Brunstad, Michele Earl-Hubbard, and Kristal Wiitala; editor Art Blauvelt; WSBA staff editor Margaret Morgan; and authors Alan Copsey, David Cuillier, Judith Endejan, Judge Kenneth Grosse, William Holt, Alison Page Howard, Michele Earl-Hubbard, Karen Jensen, Steve Marshall, William Maurer, Attorney General Rob McKenna, Bob Meinig, Marshall Nelson, Richard Oehler, Greg Overstreet, Duane Swinton, and Kristal Wiitala — deserve an award. We should have something to recognize literary merit in legal publications: that sensible, but so hard to realize, meeting of information, process, and clear writing. This deskbook is a landmark, hitting the ball out of the park on all three counts.

Lindsay Thompson practices in Port Angeles.

To order the Public Records Act Deskbook, go to www.wsbacle.org and click on "Deskbooks" and "Public Records," or call the WSBA Service Center at 800-945-WSBA (9722) or 206-443-WSBA (9722).