Litigation Insights
Analysis and practical guides on litigation.
286 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.
Policy-Limits Demands and Insurer Bad Faith: How Time-Limited Demands Set Up Excess Verdicts
This article explains how a liability insurer that turns down a reasonable settlement offer within its policy limits can end up paying a verdict many times those limits, and why the time-limited demand has become the main tool for creating that exposure. It traces the duty to settle from the Texas Stowers decision of 1929 through California's Comunale and Crisci cases, then compares the standards courts now apply, from Texas negligence to New York's gross-disregard rule. It explains what makes a demand legally effective, the case law on short deadlines, impossible conditions, liens, and multiple claimants, and the growing body of statutes in California, Georgia, Florida, and Missouri that regulate demands. It then covers what happens after a demand lapses: excess verdicts, assignments, consent judgments, and the limits courts have placed on them. Separate sections address federal court practice and the ethical duties of plaintiff's counsel, defense counsel, and the insurer. An extended worked example, common mistakes, an FAQ, and takeaways close the article.
Arbitration, Mediation, and Choosing a Dispute-Resolution Forum: A Practical Guide
When a dispute arises, the courtroom is only one of several roads, and often not the best one. This decision guide compares litigation, arbitration, and mediation across the axes that actually drive the choice: cost, speed, privacy, discovery, appealability, and—above all for cross-border deals—enforceability. It explains how the Federal Arbitration Act and the New York Convention make arbitration final and globally enforceable, why Concepcion and Epic Systems reshaped consumer and employment contracts, how mediation confidentiality works and where it breaks, and how mass arbitration turned a cost-control tool into a liability. It closes with a forum-selection framework, worked hypotheticals, drafting guidance, and an FAQ. It is the practical companion to our deeper guides on arbitration mechanics and provider rules.
Preparing to Take a Deposition Checklist: A Practical Checklist
Taking a good deposition is one of the most demanding skills in civil litigation, and the outcome is largely determined before the witness is sworn. This checklist walks the deposing lawyer through the entire arc under Federal Rule of Civil Procedure 30: confirming the procedural limits (the one-day, seven-hour cap and the presumptive ten-deposition limit), noticing the deposition and compelling nonparties by Rule 45 subpoena with the witness fee, drafting a reasonably particular Rule 30(b)(6) topic list and conferring in good faith, preparing a modular outline keyed to the elements, organizing exhibits, conducting the examination with proven questioning techniques (funneling, looping, locking in testimony, commit-and-confront impeachment), handling objections and improper instructions not to answer, managing remote logistics, and capturing testimony usable at summary judgment and trial under Rule 32 and FRE 801(d)(2). Each phase is paired with the reason it matters and the primary authority. The result is a preparation routine that survives a hostile witness, an obstructive defender, and a transcript read back months later by a judge who was not in the room.
The Art and Science of Depositions in Federal Civil Litigation: A Comprehensive Guide
This comprehensive guide is written for the litigator who must take depositions in federal civil cases, and it walks through the entire arc of an oral examination from planning to courtroom payoff. It explains the mechanics of Federal Rule of Civil Procedure 30, including the one-day, seven-hour limit, the presumptive ten-deposition cap, the nonparty witness fee, and when leave of court is required, then turns to noticing, Rule 45 subpoenas for nonparties, and the special discipline of organizational depositions under Rule 30(b)(6), with attention to the 2020 meet-and-confer amendment. The article develops a practical method for questioning witnesses—funneling, looping, locking in testimony, and impeaching with documents—and addresses exhibits, expert and hybrid witnesses, apex depositions, and the realities of remote and video proceedings. A dedicated section explains how to handle the deposition that goes sideways: the no-show, the witness who takes the Fifth, the witness who lies, and the emergency that ends the day early. It closes by showing how deposition transcripts become evidence under Rule 32 and Federal Rule of Evidence 801(d)(2) at summary judgment and trial, and how to prepare so that every hour of questioning advances the case. Throughout, it cites primary authority and offers worked examples a judge, a lawyer, and a layperson can all follow.
Preparing and Defending a Rule 30(b)(6) Deposition
A Rule 30(b)(6) deposition is the only discovery device that compels an organization to speak with one voice, and it is the single most dangerous deposition most companies ever face. The organization must designate someone to testify about matters known or reasonably available to it, prepare that person on subjects they may know nothing about personally, and live with the answers. This guide covers both sides of it: how to draft a notice that survives a motion for protective order, what the 2020 conferral amendment actually requires, how to select and prepare designees, what preparation means when the witness has no personal knowledge, how to defend the deposition and when to instruct a witness not to answer, and how the testimony is used afterward at summary judgment and at trial. The recurring theme is that the duty is to prepare the organization's answer rather than to produce a knowledgeable person, and that failing to do so is treated as a failure to appear.
Premises Liability for Property Owners and Businesses
Premises liability looks simple and is not. Whether a property owner owes a duty at all depends on how the visitor is classified in that state, whether the hazard was open and obvious, and whether the injury was caused by the property or by another person. Whether the owner breached that duty usually turns on a narrow evidentiary question—did it know or should it have known about the condition, and how long had it existed—which is decided by inspection records and video that either exist or do not. This article covers the classification systems and the modern trend away from them, how notice is actually proved and defeated, the mode of operation rule, negligent security claims for third-party criminal acts and the competing foreseeability tests, the allocation of responsibility between landlords, tenants, and contractors, and the evidence practices that decide these cases long before anyone files suit.
Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges
This article explains how courts decide whether a text message, chat, direct message, or social media post is what its proponent says it is, and why the real fight is almost always about who typed the words. It traces the low Rule 901(a) threshold and the Rule 104(b) division of labor between judge and jury, the tools in Rule 901(b), and the 2017 self-authentication provisions in Rules 902(13) and 902(14), including why a platform's certificate proves the record but not the author. It tells the stories behind the leading cases, from Lorraine v. Markel and the Maryland Griffin line to Tienda, Vayner, Browne, Hassan, Barnes, and Lewisbey, and maps the remaining split. It then covers the hurdles that follow authentication: the best evidence rule for screenshots, layered hearsay, the 2023 amendment to Rule 106, metadata and forensic experts under amended Rule 702, the Stored Communications Act limits on getting content from providers, and spoliation of ephemeral messages under Rule 37(e). A section on fabricated messages and deepfakes describes the rulemaking proposals pending as of early 2026. An extended worked example, common mistakes, an FAQ, and takeaways close the article.
Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations
This toolkit gives litigators working papers for federal jurisdiction and removal. It includes a citizenship worksheet, a bank of jurisdictional allegations by entity type, an LLC membership request letter and interrogatories, a Rule 7.1 statement, and a covenant for keeping ownership data available. Removal papers include a clock worksheet, a notice of removal with alternate paragraphs, a consent form, the state court notice, and supporting declarations. Remand papers include a motion outline, a § 1447(c) fee request, and an opposition outline, along with language for a Royal Canin amendment and an early-review request after an improper-joinder ruling. Papers for a late-discovered defect close the set. Each form names its purpose, owner, and timing, and its notes tie the language to current authority.
Res Judicata, Collateral Estoppel, and the Preclusive Effect of Judgments
Preclusion doctrine decides which fights are over, and it does so through two very different mechanisms that practitioners routinely blend together. Claim preclusion bars an entire second lawsuit on the same transaction, including theories that were never raised, while issue preclusion bars relitigation of a specific issue that was actually litigated and necessarily decided. This article separates them, works through each element in the order a court will consider it, and covers the areas where the rules are counterintuitive: nonparty preclusion after Taylor v. Sturgell, the abandonment of mutuality and the discretion courts retain over offensive use, what preclusive effect a federal court gives a state judgment and what a state court gives a federal one, and when an administrative agency or arbitrator can decide something that binds a court. It closes with the pleading and waiver rules that decide these questions in practice.
Drafting a Complaint That Survives a Motion to Dismiss
A complaint is a screening document. Its only job at the outset is to survive a motion to dismiss, and the plausibility standard means that the facts a plaintiff pleads matter far more than the causes of action they name. This guide covers drafting from the jurisdictional allegations forward. It explains what Rule 8 requires after Twombly and Iqbal, how courts separate conclusory assertions from well-pleaded facts, and the practical technique of pleading each element with the specific facts that support it. It then covers the heightened particularity Rule 9(b) requires for fraud and the claims courts treat as sounding in fraud, jurisdiction and standing, and the structural choices that determine whether a complaint reads as coherent or as a list. Later sections address exhibits and the documents a court may consider on a motion to dismiss, defensive pleading against affirmative defenses, alternative claims, the prayer for relief, and Rule 11.
Deposition Objections and Instructions Not to Answer: What Rule 30 Allows and What Gets Lawyers Sanctioned
This article explains the rules that govern lawyers and witnesses in a deposition, a seven-hour proceeding with no judge in the room. It reads Rule 30(c)(2) and Rule 32(d)(3) closely, explains which objections are lost if not made and what a form objection means, and sets out the only three grounds for telling a witness not to answer. It compares the competing lines of authority on whether a lawyer and witness may talk during breaks, from Hall v. Clifton Precision to In re Stratosphere and the state high courts that chose between them. It walks through the sanctions cases, including the Eighth Circuit's reversal of the training-video order in the Abbott Laboratories litigation, and shows with invented transcript excerpts what proper and improper conduct look like on the page. It also covers remote coaching, misbehaving witnesses, examining lawyers who cause the trouble, and the state and local rules that change the answer. The reader leaves knowing what is settled, what is unsettled, and where to look first in a given court.
Jury Selection and Voir Dire: A Practical Guide for Civil Trials
Jury selection is the only phase of a civil trial in which a lawyer is not trying to persuade, and the most common mistake is forgetting that. Voir dire exists to identify the people who cannot be fair to your client and to develop a record supporting their removal, and every minute spent arguing the case instead is a minute not spent finding them. This guide covers how the venire is assembled and what challenges to its composition are available, the difference between a challenge for cause and a peremptory strike and how each is used, the Batson framework as it applies in civil cases, the mechanics of the struck jury and strike-and-replace methods, and how to design questions that actually surface bias. It closes with jury questionnaires, permissible juror research, and the post-verdict issues that trace back to selection.