|
Book Review
Business and Commercial
Litigation in Federal Courts, Second Edition:
A Treatise for Federal Criminal
Practitioners
by Stephen D. Miller
Business
and Commercial Litigation in Federal Courts (2nd ed. 2005) Robert L. Haig, editor-in-chief.
Business and Commercial Litigation in Federal Courts
(2nd Edition) could have been titled “Civil and Criminal Litigation
in Federal Courts.” This fine
treatise was written primarily for federal commercial practitioners, but it
is a valuable resource for federal criminal practitioners as well. In fact, the eight volumes of BCL cover a
wide spectrum of procedural issues facing criminal practitioners in the
preindictment, pretrial, and trial stages of a federal criminal case.
Two chapters offer valuable guidance in the
investigatory and preindictment stages:
Investigation of the Case (Chapter 4) and Discovery Strategy and
Privileges (Chapter 19). BCL
contains practical tips on how to select a qualified and licensed
investigator, and how best to draft a retainer agreement with an
investigator or other consultants, such as accountants, so that their work
may be protected by the attorney-client and work product privileges. A form model retainer agreement is
included in the practice aids section of Chapter 4. Of great value to a practitioner’s
investigation is the section describing the use of the internet to access
information about a company, its business, and its officers and directors. Search engines such as Google, Yahoo,
Lexis-Nexis, Company Sleuth, and Public Record Finders are identified so
that a wide variety of information about persons and corporations can be
accessed on the internet. Such
information includes social security numbers, dates of birth, use of
aliases, criminal records, bankruptcy filings, interests in real estate,
vehicle ownership, and driving records.
Pacer permits access to pleadings and records of United States
District Bankruptcy and Appellate Courts.
The forensics section contains an interesting discussion of private
sting operations, polygraphs, and trash examinations.
Chapter 19, entitled “Discovery Strategy and
Privileges”, discusses the various privileges that may be asserted by
a defense lawyer in an effort to defeat the Government’s efforts to
secure information in its investigation.
It has become common for the Government to attempt to pierce
attorney-client communications by alleging that they fall within the
crime-fraud exception to the attorney-client privilege. The showing that must be demonstrated by
the proponent of crime-fraud is discussed and applicable cases cited.
Opinion work product is entitled to significantly
higher protection from disclosure than ordinary work product. Chapter 19 points out that a memorandum
of a witness interview prepared by a lawyer which embodies the
lawyer’s insights about the characteristics of the witness and how
his testimony would fit into the case constitutes the opinions, mental
impressions, and conclusions of the lawyer, and should be accorded a
significantly higher level of protection from disclosure to the
Government. This chapter also
discusses the preparation of privilege logs, the necessity for providing
sufficient identifying information yet not with such detail that the privilege
sought to be protected would be invaded.
Use of the Freedom of Information Act, 5 U.S.C. §552
(“FOIA”), to secure helpful information from the Government
outside of the regular discovery procedures provided for by the Federal
Rules of Criminal and Civil Procedure are included in Chapter 19 as well.
Crucial to a criminal defendant’s trial
strategy is the determination of whether in limine motions should be filed
in advance of trial. A primary
objective of the in limine motion is to avoid prejudice at trial by having
the Court decide in advance whether particular evidence that the Government
wishes to offer is, in fact, admissible.
Chapter 32 (motions in limine) discusses the legal basis and
strategy for filing “relevance” motions under Federal R. Evid.
402 and motions authorized by Federal R. Evid. 403 which allows a litigant
to attempt to exclude evidence, even if relevant, if the unfair prejudice,
waste of time, or jury confusion substantially outweighs the practical
value of the evidence. This chapter
warns that an opposing party may seek to offer inadmissible hearsay before
the jury through expansive expert testimony. Thus, an in limine motion should be
considered to limit the scope of expert testimony to avoid such prejudice.
BCL’s Volumes 3 and 4 contain four informative
chapters concerning the trial of a case:
Opening statements, cross examination, expert witnesses, and closing
arguments in jury and bench trials.
Of interest both to younger, less experienced lawyers
as well as experienced advocates is Chapter 34, concerning opening
statements. The language used in an
opening statement should be simple and expressive and told in narrative
form, like an interesting story:
“Oral storytelling is much different from
written storytelling. The oral form
is three-dimensional. In addition to
the literary content, the personality, the presence, and the mannerisms of
the teller are included. Facial
expressions, physical gestures, voice characteristics, modulations, and
many other things go into the process.”
Chapter 36 discusses cross-examination. It begins with the question of whether
cross-examination of a given witness should be considered at all, and then
provides several examples of effective Impeaching Cross Examinations. The chapter concludes with the wise
advice that “cross-examination is an art based upon induction and
personality and honed hopefully to perfection by “Extended Courtroom
Experiences.”
A ranging discussion of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) is found in Chapter 80. The question of what constitutes a RICO
enterprise is frequently at issue in RICO criminal litigation. A good discussion of the proposition that
an association-in-fact enterprise must have a structure and an ongoing
legitimate purpose that is different from a group that is joined together
solely to violate RICO is clearly set out.
Chapter 59 discusses ethical issues in commercial
cases. As in the chapters discussed
earlier, there is much that applies with equal force in a criminal
case. There are discussions of
conflicts of interest, withdrawal, and joint defense agreements. The pros and cons of whether the lawyer
can appear as an advocate in the case if he is likely to be a witness is
fully explored.
The editor-in-chief of this fine treatise is Robert
L. Haig, an outstanding litigator and legal scholar, who is a partner with
the law firm of Kelley, Drye & Warren, LLP in New York. 199 principal authors, including 17
federal judges, have authored the 96 chapters of BCL. Included with the treatise is a CD-ROM
which contains checklists, forms, and jury instructions that are found in
the printed volumes.
BCL is a valuable resource for all lawyers who
practice in the federal courts, whether their focus is civil or criminal,
and whether they are older and experienced or younger and in need of
reliable information and advice.
|
