Litigation Insights

Analysis and practical guides on litigation.

199 articles, checklists, and guides on litigation law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

LitigationClass Actions

Winning or Defeating Class Certification: A Practical Guide

Certification is won and lost on decisions made in the first months of a case, long before the motion is briefed. This guide sets out the sequence for both sides: framing the theory and the class definition against the evidence that will actually exist, planning certification discovery around the data the model needs, and selecting and managing the expert who will carry the case. It works through the plaintiff's construction of a common-proof showing and the defendant's attack on it — member-level results, benchmark contamination, aggregation, false positives, and the uninjured-member argument — together with the Rule 702 motion and how to time it. Later sections cover the certification hearing itself, including live and concurrent expert testimony, the findings the record needs for appeal, and the Rule 23(f) petition. It closes with settlement classes, class definition narrowing, and the choices that decide the case.

Casey Scott McKaySeptember 5, 202628 min read

LitigationArbitration

Who Decides Arbitrability: Delegation Clauses, Gateway Questions, and the Severability Rule

Before a court can decide whether a dispute belongs in arbitration, it has to decide who decides that question. This article explains the layered doctrine that answers it: the severability rule of Prima Paint and Buckeye, the clear-and-unmistakable standard of First Options, the procedural-versus-substantive divide of Howsam, and the delegation clause that Rent-A-Center made independently enforceable. It covers the incorporation-of-rules question that continues to divide courts, what Henry Schein settled and what it did not, and how Coinbase v. Suski handles conflicting agreements. It closes with the drafting choices that determine which forum answers the first question.

Casey Scott McKaySeptember 5, 202628 min read

LitigationTrial Practice

Trial Presentation Toolkit: Exhibit Lists, Foundation Scripts, and Demonstrative Protocols

This toolkit supplies the forms and scripts that carry an exhibit programme from twelve weeks out through the verdict. It opens with an exhibit database schema and a list template, followed by ready-to-adapt certifications under Rules 902(11), 902(13), and 902(14) with the notice of intent that must accompany them. A stipulation form and agenda make the eight-week session productive, and a redaction protocol with a verification sign-off addresses the error that causes mistrials. Foundation scripts cover business records, photographs, video under the silent witness theory, audio, electronic communications, database output, and Rule 1006 summaries. Later tools include a demonstrative disclosure and design standard, a motion in limine outline, an offer of proof script, a daily exhibit log, a deposition designation chart, a courtroom technology checklist, and a jury room set verification form.

Casey Scott McKaySeptember 5, 202613 min read

LitigationTrial Practice

Trial Exhibits and Demonstratives: Getting Evidence in Front of the Jury and Keeping It There

An exhibit that is not admitted is not evidence, and the difference is made by foundation work done weeks before trial. This article explains the two doorways every exhibit must pass — authentication under Rule 901 or 902, and a hearsay exception where the exhibit is offered for its truth — and the practical foundations for the documents that actually appear at trial: business records, electronic communications, social media, database output, photographs, video, and recordings. It sets out the distinction between a summary admitted under Rule 1006 as substantive evidence and a demonstrative used only to illustrate testimony, why that distinction determines whether the item goes to the jury room, and how courts handle the boundary. Separate sections address Rule 403 and the Old Chief problem of evidentiary richness, the rule of completeness, objections and offers of proof, and the pretrial order process that decides most of these questions before the jury is empanelled.

Casey Scott McKaySeptember 5, 202627 min read

LitigationTrial Practice

Trial Exhibit Preparation Checklist

This checklist runs the exhibit workstream on a twelve-week schedule and through trial. It begins with deriving the list from the verdict form rather than from the document production, and with the database fields that determine whether an exhibit has a route into evidence. Certification, stipulation, and redaction sections cover the three tasks that eliminate the most trial time and prevent the most damaging errors. Later sections cover motions in limine, foundation scripts by exhibit category, demonstrative design rules and the Rule 1006 boundary, deposition designations, courtroom technology, and the daily exhibit log. Objection deadlines are set out with the waiver consequences that attach to each, and the closing sections cover the jury room set verification, the appellate record, and the post-verdict preservation steps.

Casey Scott McKaySeptember 5, 20267 min read

LitigationInternational Arbitration

Treaty Arbitration Toolkit: Notices of Dispute, Jurisdictional Objections, and Enforcement Strategy

This toolkit provides the operative documents of an investor-state arbitration in drafting-ready form, annotated with the consequence each carries. It supplies a notice of dispute drafted to preserve jurisdiction and to make settlement possible, an arbitrator selection framework, a jurisdictional objection outline for a respondent state, and a bifurcation application. It provides a document request schedule in the format tribunals expect, quantum expert instructions, and an asset mapping template for enforcement. On the preventive side it supplies a stabilization clause, separate waivers of immunity from jurisdiction and from execution, and an award-on-agreed-terms provision that makes a settlement enforceable rather than merely contractual.

Casey Scott McKaySeptember 5, 202617 min read

LitigationCross-Border Litigation

Seeking or Opposing Section 1782 Discovery: A Practical Guide

This guide runs a section 1782 matter from the first strategic question through the appeal. For applicants it covers target selection, which is the decision that most often determines the outcome, then venue, the foreign counsel declaration that establishes use and receptivity, and the scope discipline that separates granted applications from denied ones. Filing mechanics cover the ex parte petition, the supporting record, and subpoena drafting. For respondents it covers the response decision, intervention by the foreign adversary, and the motion to quash organized around the Intel factors, with particular attention to obtaining evidence from the foreign forum. Later sections address privilege in a cross-border setting, blocking statutes and data protection, protective orders, negotiated resolutions, appeals, and the defensive application that changes the dynamic.

Casey Scott McKaySeptember 5, 202628 min read

LitigationCross-Border Litigation

Section 1782 Discovery in Aid of Foreign Proceedings: Who Can Ask, What They Get, and What ZF Automotive Changed

Section 1782 lets a party to a foreign proceeding obtain American-style discovery from persons found in the United States, and for a decade it was the most powerful and most contested tool in cross-border litigation. This article sets out the three statutory requirements and the four discretionary factors that govern every application, then explains what ZF Automotive settled and what it left open: private commercial arbitration is out, governmental and intergovernmental adjudicative bodies are in, and the treatment of investor-state tribunals now turns on the consent instrument that created them. It works through the contested questions that remain — what "resides or is found" means for a foreign corporation, whether the statute reaches documents held abroad, and how courts assess foreign receptivity — together with the practical mechanics of an ex parte application and a motion to quash. Separate sections cover the Hague Evidence Convention, foreign blocking statutes, and the strategic use of 1782 by respondents. Worked examples follow a document application, a deposition of a US executive, and a successful challenge.

Casey Scott McKaySeptember 5, 202629 min read

LitigationCross-Border Litigation

Section 1782 Application Checklist

This checklist runs a section 1782 matter from the threshold question of whether a qualifying tribunal exists through production, opposition, and appeal. Applicant sections cover the ZF Automotive analysis, the reasonable contemplation record for a pre-suit application, target selection ranked from strongest to weakest, venue considerations, and the foreign counsel declaration that must establish use and receptivity. Scope discipline is set out in detail because courts deny broad applications rather than narrowing them. Respondent sections cover the response decision, the foreign-forum investigation that produces the strongest defences, intervention by the foreign adversary, and a motion to quash organized around the Intel factors. Later sections cover blocking statutes and data protection, cross-border privilege, protective orders, timelines, appeals, and the defensive application.

Casey Scott McKaySeptember 5, 20268 min read

LitigationArbitration

Running an International Arbitration: A Practical Guide

A step-by-step operational guide to conducting an international commercial arbitration from the request through enforcement. It covers the pre-filing assessment, constituting the tribunal and vetting arbitrators, the first procedural conference and the orders that shape everything after it, the memorial system, document production under the IBA Rules, witness and expert evidence, hearing logistics, post-hearing submissions, and the award. It includes budgets, timelines, staffing, worked examples with named parties, and the mistakes American practitioners make most often. Written to be used by counsel on either side and by in-house lawyers supervising outside teams.

Casey Scott McKaySeptember 5, 202628 min read

LitigationClass Actions

Removing or Remanding a Class Action Under CAFA: A Practical Guide

This guide runs a CAFA removal and the remand fight that follows, in the order they happen and from both sides. It starts with the thirty-day calendar and the intake analysis that determines whether the case is removable, then drafting a notice that pleads plausibly rather than proving prematurely, and the mechanics that cause avoidable remands. It covers the amount in controversy declaration when the allegation is contested, jurisdictional discovery, and briefing the mandatory and discretionary exceptions with attention to who bears the burden. Later steps address the discretionary ten-day appeal, mass actions and their peculiar limits, the second removal window, and what changes once the case stays. Separate steps give the plaintiff's playbook and the alternative removal statutes worth checking. A running example follows one defendant and one plaintiff through the same case.

Casey Scott McKaySeptember 5, 202628 min read

LitigationGovernment Enforcement

Qui Tam Toolkit: Complaints, Disclosure Statements, Intervention, and Settlement

This toolkit supplies the working documents of a False Claims Act matter, ordered by when they are used. It opens with a signal-recognition worksheet and a first-thirty-days protocol, a litigation hold that reaches the systems where evidence actually lives, and a civil investigative demand response plan. It provides an internal investigation scope memorandum with an Upjohn warning script, a claim process map, a scienter file index built around what Schutte made decisive, and a materiality record request list aimed at the government's own conduct. Later tools cover jurisdictional bar research, a government presentation outline, a motion to dismiss framework, a relator disclosure statement outline, a settlement term sheet covering the collateral terms that often matter more than the money, a retaliation response protocol, and a compliance interpretation memorandum template. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202619 min read