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.

LitigationSanctions

Rule 11 Sanctions and Safe Harbor Checklist: A Practical Checklist

Rule 11 practice is procedural before it is substantive, and most motions fail on the safe harbor rather than on the merits. The rule requires a separate motion, served on the offending party and not filed, with twenty-one days to withdraw or correct — and a motion filed without that sequence is denied almost automatically. This checklist covers the pre-filing inquiry that prevents exposure, the exact safe harbor procedure for a party seeking sanctions, the response for a party receiving a motion, and the separate regimes that govern discovery conduct, attorney conduct that multiplies proceedings, and bad-faith conduct reachable only through the court's inherent power. It closes with citation verification, now the fastest-growing category of sanctions.

Casey Scott McKayMay 25, 20258 min read

LitigationAppeals

Appellate Practice Toolkit

Appeals are decided by two things that have nothing to do with persuasive writing: whether the error was preserved below, and whether the standard of review permits the court to do anything about it. A brilliant brief attacking a discretionary ruling, on an issue raised for the first time on appeal, loses. This toolkit therefore starts in the trial court, where preservation happens, and works forward: the objections and motions that keep issues alive, the appealability and deadline analysis that is jurisdictional, the standards of review that determine which issues are worth raising, assembling the record and the appendix, structuring and writing the brief to the court's rules, oral argument, and the post-decision options. It closes with what an appellate lawyer brought in before trial actually contributes.

Casey Scott McKayMay 21, 202512 min read

LitigationCivil Procedure

Attorney Fee Petition and Bill of Costs Checklist: A Practical Checklist

A two-sided checklist covering everything that determines a fee award. The first half runs the applicant's sequence: preserving entitlement at intake, timekeeping standards that survive review, deadline capture at judgment, the components of a complete petition, rate and hours evidence, voluntary billing judgment, apportionment, and the bill of costs with the section 1920 list spelled out. The second half runs the opposition, including the three targets that actually work and the arguments that do not. Sanctions-based fee claims and fee settlement structures are covered at the end.

Casey Scott McKayMay 20, 202510 min read

LitigationDiscovery

Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest

Privilege is the only evidentiary protection a company can lose through carelessness on an ordinary Tuesday and never get back. This article explains the two distinct doctrines that businesses rely on and constantly conflate: the attorney-client privilege, which protects confidential communications for the purpose of legal advice, and the work product doctrine, which protects materials prepared in anticipation of litigation. It covers who holds the corporate privilege and who may waive it, the control group and subject matter tests resolved by Upjohn v. United States, the special problems of in-house counsel who wear business and legal hats, and the primary purpose and significant purpose tests for dual-purpose communications after In re Kellogg Brown and Root. It works through work product under Rule 26(b)(3), the difference between ordinary and opinion work product, and the substantial need exception. It then addresses waiver in operational terms: Federal Rule of Evidence 502, clawback agreements and Rule 502(d) orders, subject matter waiver, the at-issue and advice-of-counsel waivers, and disclosure to auditors, insurers, and the government. Sections on the crime-fraud exception, the common interest doctrine, internal investigations, and privilege logs follow, with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayMay 14, 202525 min read

LitigationCivil Procedure

Preparing and Opposing a Fee Petition: A Practical Guide

This guide runs a fee petition from both sides. It begins where fee awards are actually won or lost — in daily timekeeping habits set long before judgment — then covers confirming entitlement, calendaring the short deadlines, assembling the motion and supporting declarations, proving the market rate, presenting hours in a form a court can review, exercising billing judgment before the court does it for you, apportioning unsuccessful claims, requesting enhancements, and claiming fees on fees. The second half runs the opposition: choosing three targets rather than nine hundred, documenting them, and using offer-of-judgment leverage. Costs and settlement of fee claims are covered separately.

Casey Scott McKayMay 6, 202528 min read

LitigationPatent Litigation

A Comprehensive Guide to Federal Civil Litigation for Small Businesses

This guide walks a small business through the full arc of a federal civil lawsuit, from the decision to sue or settle through pleadings, discovery, dispositive motions, trial, appeal, and collection, with a sustained focus on patent litigation. It anchors each stage in the governing rules and controlling cases, including the plausibility standard of Twombly and Iqbal, the summary judgment framework of Rule 56 and Celotex, the claim construction methodology of Markman and Phillips, and the venue rule of TC Heartland. It translates doctrine into practical, cost-aware strategy for businesses that cannot spend like a Fortune 500 defendant. Worked hypotheticals illustrate how the rules play out in real disputes. The aim is not to replace counsel but to make the reader a more informed client and a sharper decision-maker. Throughout, it flags the chokepoints where most cases are actually won, lost, or settled.

Casey Scott McKayMay 5, 202538 min read

LitigationAdministrative Law

Making a FOIA Request and Litigating a Denial

The Freedom of Information Act gives any person a right of access to federal agency records, subject to nine exemptions, and it is a genuinely powerful tool that most businesses and litigators underuse. It produces inspection reports, complaint files, contract records, enforcement correspondence, communications with competitors, and the material an agency relied on in a rulemaking — frequently faster and cheaper than discovery, and available where no litigation exists. This guide covers how to draft a request that actually gets processed, the fee and expedited processing rules, the exemptions the agency will invoke and how each is contested, the administrative appeal that must precede suit, and how FOIA litigation is actually conducted. It closes with the reverse-FOIA problem facing companies whose own information has been requested.

Casey Scott McKayMay 3, 202526 min read

LitigationDepositions

Deposition Practice Toolkit: Taking, Defending, and Using Depositions in Federal Litigation

This toolkit is a roadmap for the full life cycle of a federal deposition, from deciding whom to depose through using the transcript at trial. It walks the strategic and procedural decisions in order—notice and logistics under Rule 30, preparing to take, outlining and exhibits, questioning technique, defending and preparing your own witness, objections, errata, and the use of deposition testimony on summary judgment and at trial. It gives special attention to remote depositions and to the distinctive mechanics of Rule 30(b)(6) corporate depositions. Each stage links to mclaw.io checklists and articles plus the governing rules and leading authorities (FRCP 27–32, FRE 611/612/613, and Hall v. Clifton Precision). It is written for litigators, paralegals, and self-represented parties who want both the big picture and the operative detail.

Casey Scott McKayApril 30, 202518 min read

LitigationCivil Procedure

Attorneys Fees and Costs: The American Rule and Its Many Exceptions

In the United States each side normally pays its own lawyer. That default — the American Rule — is why most small claims never get litigated and why fee-shifting statutes are among the most consequential provisions in American law. This article explains where the American Rule comes from, the five categories of exception, what it takes to be a prevailing party after Buckhannon and Farrar, how the lodestar is calculated and when it may be enhanced or reduced, why prevailing defendants almost never recover fees in civil rights cases, how a Rule 68 offer can strip a winning plaintiff of fees, what is and is not taxable as costs under section 1920, and how sanctions authority operates as a separate fee-shifting track.

Casey Scott McKayApril 21, 202528 min read

LitigationCivil Procedure

Civil Damages Toolkit: Contract, Tort, Statutory, and Punitive Recovery

A working kit of damages instruments. Section A is a measures table covering the common claims with the formula for each. Section B is a lost profits worksheet with the fixed-versus-variable cost analysis that decides most commercial damages fights. Section C holds document templates: an itemization interrogatory, a damages document request set, an expert engagement scope, a demand letter framework, and a settlement valuation model. Section D outlines a motion to exclude and its opposition. Section E supplies jury instruction language and a verdict form. Section F collects the primary authorities.

Casey Scott McKayApril 8, 202514 min read

LitigationPre-Litigation Practice

Drafting a Demand Letter: A Practical Checklist

A demand letter is the cheapest and often most effective tool in pre-litigation practice, but a careless one can damage a case or expose the sender to liability. This checklist walks through assessing the claim and the legal landmines before you write, assembling the eight load-bearing components of an effective letter, staying on the safe side of Federal Rule of Evidence 408 and the extortion line, complying with the Fair Debt Collection Practices Act when collecting a consumer debt, triggering and honoring the duty to preserve evidence, checking for required statutory and contractual pre-suit demands, and proving delivery. It pairs each step with the governing authority and flags the single most important caution: never threaten criminal charges to extract a civil payment. It is general information, not legal advice; the law varies by jurisdiction.

Casey Scott McKayApril 4, 20259 min read

LitigationTrial and Post-Trial

Jury Selection and Voir Dire Checklist: A Practical Checklist

Voir dire exists to identify the people who cannot be fair to your client and to build a record supporting their removal, and almost everything else lawyers do in jury selection is a distraction from that. This checklist sets the preparation sequence — learning the judge's format, deciding whether to seek a questionnaire, writing strike criteria in advance — then runs the day itself: question design that produces information rather than agreement, preserving a cause challenge before anyone offers rehabilitation, the arithmetic of a limited number of peremptory strikes, and the contemporaneous notes that answer a Batson objection. It closes with the post-verdict issues that trace directly back to what was asked and what was preserved. It closes with the Batson sequence and the record-building that makes a challenge, or a defense of one, survive appeal.

Casey Scott McKayApril 2, 20258 min read