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Strategies for Success at Every Step of the Business Torts Case

By Kristine L. Roberts, Litigation News Immediate Past Editor-in-Chief

 

As the practice of litigation becomes more specialized, there is a greater need for resources targeted to trial lawyers’ substantive areas of focus. In some ways, trying a case is trying a case, and a great trial lawyer can apply his or her skill set to any set of facts or area of law. Yet the fact of specialization within litigation shows that clients also see value in hiring trial lawyers who specialize in or possess expert knowledge of specific subject matter.


Business Torts, A Practical Guide to Litigation, edited by Bradley P. Nelson and Jeffrey R. Teeters, answers the call of trial specialists and business torts lawyers alike who are looking for resources directed at how to prepare and try a business torts case. The book’s strengths include its comprehensive coverage of the pretrial process as well as its strategic and practical emphasis.


The focus of the book is not on the substantive law of business torts but rather on how to approach each step of preparing a business torts case for trial. The book has 11 chapters written by experienced practitioners, which focus on the pretrial and trial process.


  • •“Pre-Suit Investigation” highlights the importance of early development of relevant facts, legal analysis, and strategy, as well as managing client expectations.
  • •“Alternative Dispute Resolution” explores when to mediate or arbitrate and how to prepare for mediation and arbitration.
  • •“The Complaint” addresses how to plead business torts claims and decisions about choice of forum and relief to seek.
  • •“Emergency Relief” examines temporary restraining orders or preliminary injunctions.
  • •“Motions Directed to the Complaint” discusses motions attacking the plaintiff’s chosen forum and the substance of the complaint.
  • •“Answer, Affirmative Defenses, and Counterclaims” looks closely at the rules and strategy relating to answers, affirmative defenses, and counterclaims.
  • •“Discovery and Depositions” analyzes the discovery process, including e-discovery and corporate depositions in the business tort context.
  • •“Expert Witnesses” broadly surveys the practical and ethical considerations involved in selecting and working with experts.
  • •“Summary Judgment” delves into specific business torts and how each may be resolved through
    dispositive motions.
  • •“Trial Preparation” focuses on evidentiary issues, technology, developing case themes, and
    communicating with the judge
    or jury or both.
  • •“Presenting the Business Torts Case to a Jury” advises readers on how to help jurors understand complex and unfamiliar issues and gives tips on jury selection and working with witnesses.

Business Torts is user-friendly, both because the editors have organized the chapters to follow the stages of the litigation process and because the authors of those chapters have taken pains to break down their topics into key questions, types of motions, or rules of civil procedure. At 210 pages, it is a book that a reader can digest quickly, but it also can be a useful desk reference to be consulted when needed.


The book gives helpful advice at every stage of a case. The authors consistently direct the reader to think about why to consider or reject various tactics. They then help guide readers through “how to” steps to get the best results.


Business Torts, A Practical Guide to Litigation is not a step-by-step manual for how to prepare one’s first lawsuit for trial. It also does not provide case law developments on unfair competition, breach of fiduciary duty claims, or other specific business torts. As the book’s preface notes, the editors did not intend to address substantive law. And while the final chapter is about presenting a case to a jury, the book’s focus is much more on the pretrial so that the lawyer is positioned to succeed at trial.


For lawyers who regularly handle business torts cases or who may do so from time-to-time, this book is an essential resource. For lawyers who practice in other areas, the book still offers valuable insights. With its practical tips, emphasis on careful planning, and discussions of strategy, Business Torts, A Practical Guide to Litigation is well worth the read.


Keywords: business torts, pretrial process, trial process, discovery, trial preparation


Business Torts, A Practical Guide to Litigation (ABA 2014), available at the ABA Web Store or by calling 1-800-285-2221.


 
 
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