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Business and Commercial Litigation in Federal Courts reviewed
JOHN HILL
MICHAEL ALTVATER
Lewis Brisbois partners
Published: February 10, 2023
In 2022 we received the fifth edition of Robert Haig’s invaluable treatise, Business and Commercial Litigation in Federal Courts, which Thomson Reuters publishes in cooperation with the American Bar Association.
This 16-volume work includes 180 chapters on topics ranging from the elemental to the esoteric. The fifth edition adds 26 new chapters, covering emerging topics such as Artificial Intelligence, Space Law and Virtual Currencies.
For many years now, our litigation team routinely has consulted Haig’s treatise while litigating complex business cases. In our view, the treatise masterfully serves many readers’ diverse needs. A new litigator can find a quick refresher on federal diversity jurisdiction; a senior associate can review plentiful case citations for a motion to dismiss a shareholder derivative action, or a senior lawyer can consider thoughtful chapters discussing litigation strategy in niche areas of law. The treatise brings great and enduring value to a busy commercial litigation team.
We reviewed two of the new chapters from the latest edition.
Chapter 44 – Use of Jury Consultants
In several prior editions, Haig’s treatise has offered a robust chapter on Jury Selection, which we have admired and used as a resource. That excellent chapter is now followed and supplemented by the new chapter, Use of Jury Consultants, authored by practicing attorney Michael F. Williams of Washington, D.C. Our team tries many commercial cases to juries, and we value input from jury consultants. So we welcome this thoughtful addition to the treatise.
The new chapter thoroughly reviews the jury consultant’s place in modern trial practice. It will serve as a good primer for practitioners still mastering the thorny logistical and strategic challenges faced when trying to employ these consultants wisely.
Williams notes that jury consultants are a relatively new tool for sophisticated litigators, and that their role has expanded over the last few decades. Initially, trial lawyers used these consultants primarily to assess the public’s perception of a high-profile client for purposes of contesting venue based on concerns about pre-trial juror bias.
Today, jury consultants do much more. They help trial lawyers evaluate the merits of cases, they help formulate trial themes and strategies, they help prepare key witnesses for testimony and they roam courtrooms actively participating in the jury selection process. We knew jury consultants had truly arrived when one served as the titular protagonist of a network television series (the appropriately-named “Bull”).
In real life, the jury consultant’s broader and more visible role generates many questions and potential pitfalls for trial lawyers hiring and working with them. Williams’ chapter nicely identifies and addresses those issues. It covers fundamental topics such as protecting confidentiality and the attorney-client privilege. It also discusses the nuanced matter of “maintaining discretion”—namely, how to maximize a jury consultant’s role at trial while also accounting for the (commonly underappreciated) risk that some jurors might balk or be distracted by knowing that a psychologist is watching and analyzing them.
As it develops in future editions, the chapter would do well to add citations to case law or academic literature. But as it stands, the chapter brings true value to the treatise and any practitioner seeking to wisely and effectively use jury consultants in complex litigation.
Chapter 100 – Valuation of a Business
The new chapter titled Valuation of a Business is a useful resource for any attorney or expert witness, regardless of experience. Complete with a sample expert report, it offers readers a practical guide to business valuation methods, expert witness requirements, and case strategy considerations. It can be thought of as a “checklist” to consult at the earliest stages of litigation where the value of a business is a disputed issue in need of resolution.
Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York and his co-authors recognize the inherently factual nature of business valuation disputes and the need for expert testimony. They provide recent case law authority for the broad range of education and experience courts accept when qualifying a business valuation expert. They also offer practical “Tips” for practitioners, with due consideration given to how counsel and the expert witness should work closely together in producing a report.
Apart from procedural and practical considerations, the chapter examines the most common business valuation methods—discounted cash flow, comparable companies, comparable transactions, and market/asset-based value analyses. Discounted cash flow receives in-depth treatment as federal courts generally consider it a reliable method for determining a business’s value. The authors separately analyze each step of the discounted cash flow method to provide a more comprehensive overview.
The chapter also guides practitioners in choosing between the different valuation methods for public or private companies of any size. When possible, the best practice is to use multiple methodologies to validate the expert’s opinion and demonstrate its reliability.
Given the popularity and availability of Business and Commercial Litigation in Federal Courts, attorneys must assume that opposing counsel (and the court) have reviewed Valuation of a Business when faced with business valuation issues. While additional treatises are available, Judge Liman and his co-authors deserve praise for their clear and concise treatment of the topic. At a minimum, the chapter sets forth foundational principles for issue spotting and conducting additional research. Ultimately, it is required reading for litigators handling cases where the trier-of-fact will determine the value of a business.
John Hill and Michael Altvater are partners at Lewis Brisbois, working from the firm’s Akron and Cleveland offices. They represent clients in high-stakes complex litigation, including partnership or shareholder disputes, fraud, fiduciary duty and trade secret claims.”