Fundamentals of Litigation Practice, 2010 Edition

Vol. 28 No. 3

Reviewed by

David Zachary Kaufman is located in Fairfax, Virginia. His litigation practice is in Virginia, Maryland, and Washington, D.C.

Fundamentals of Litigation Practice is a wonderful book. I’ve owned my own firm that does 100 percent litigation in three states plus the federal courts for almost 12 years; I’ve been a lawyer for almost 20; and this book is one of the best I’ve ever seen for a litigator. Why do I like it so much?

Above all else, this book is written in clear English. No legalese. No long, involved sentences with dependent clauses and passive voice. It’s easy to read, easy to understand, and packed with information. At the front of every chapter it also has a “StartSmart” section. What’s this? The authors explain, “These are intended to be the place to start for a new lawyer who has never dealt with a problem or for a more experienced lawyer who hasn’t addressed the issue recently.” I might add something to this. I don’t care how experienced you are—go look at these StartSmarts. They are invaluable summaries that can help you check whether you’ve missed, forgotten, didn’t learn, or overlooked something. I love them. They are worth the price of the book all by themselves.

What else do I like about this book? First, the organization is useful and logical. It’s organized like a litigation practice. In other words, it starts with the choices any litigator faces when the process starts. Before anything, litigators must ask, “Is this worth the effort? Is there money to be recovered, or am I just doing this for fun?” These are key questions that must be answered—and answered in the correct way—or there will be zero profit and very unhappy clients. So start there. Don’t start with the case; start by assuming you win and decide if you can get the money you deserve. Then and only then can you begin to decide such things as the litigation budget.

Second, the book doesn’t start with “draft a complaint.” Instead, it quite properly reminds us to start by preparing not only the case but the client. Identify what outcome the client wants, needs, and desires. Identify the relevant law and facts to decide what research needs to be done, what facts need to be developed, and which forum and/or jurisdiction you will choose. Chapter 3 has an excellent discussion of the type and methods of investigation that should be carried out. One thing this book seems to recognize is that smaller cases cannot receive the same treatment as larger ones. As the authors say in the book, “A contingency fee plaintiff in a $30,000 case cannot reasonably expect counsel to perform 200 hours of legal research at the outset. . . .” Many of the books I have read seem to overlook this real-world constraint.

Third, this book walks you through the entire process of a lawsuit. As it does, it discusses strategic and tactical choices the litigator faces and sets out the pros and cons of each under different circumstances. It’s amazingly comprehensive. So when you are confronting choices, visit the book and read up on the situation. The book won’t solve your problem for you, but you will learn enough to analyze your decision and be comfortable with it. I’ve found it invaluable recently when I was deciding whether to challenge discovery production or file for a motion in limine.

Fourth, there is amazingly subtle stuff to be found when you read the detailed write-up in the individual sections. I don’t want to go into all the details, but I noticed that, if the StartSmart is interesting and useful, reading the detailed sections that follow will provide the additional information I need.

One major caveat, and it’s almost impossible to avoid: This book is written for those who use the Federal Rules of Procedure or who practice in a jurisdiction with state rules that mirror the federal. It’s less useful for those of us who practice in states such as Virginia, where the state rules differ significantly from the federal ones. Still, if you know your local and state rule well enough, you should be able to adapt. I did.

Note: West, a Thomson Reuters business, is a corporate sponsor of the General Practice, Solo and Small Firm Division; this article appears in connection with the Division’s sponsorship agreement with West. Neither the ABA nor ABA entities endorse non-ABA products or services. This review should not be construed as an endorsement. The authors of these reviews receive complimentary review copies of the products being reviewed.

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