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.
Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover
This article explains where lawful witness preparation ends and coaching begins, reading the ethics rules, ABA Formal Opinion 508, and the cases that have sanctioned or cleared lawyers for what they did in the conference room. It covers the Upjohn warning and who actually holds the privilege, why former employees and third-party witnesses are different, and the split between In re Allen, Peralta v. Cendant, and Newman v. Highland School District. It reads Rule 612, Sporck v. Peil, James Julian, Berkey Photo, and Nutramax closely so you can predict whether the prep binder will be discoverable. It sets out what opposing counsel may ask about preparation, what happens during breaks, and how remote depositions change the risk. It also explains how memory works under questioning, how preparing an executive differs from preparing a frightened clerk, and what a nonlawyer about to be deposed should know.
Motion in Limine Toolkit: Standard Motion Banks, Opposition Frameworks, and Trial Objection Plans
This toolkit collects the working papers of motion in limine practice, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing authority. It opens with a triage matrix and a conferral letter with a stipulated order, then provides a standard motion bank of more than thirty common motions, each with a one-paragraph rationale, the governing authority, and a note on how the other side typically responds. Further templates cover a brief shell, proposed order language, an opposition framework, a script for confirming definitive rulings, a witness instruction memo, a trial objection plan, an offer-of-proof script, a violation response script, and a preservation tracker. A running fictional example, a herbicide drift case between an orchard and a chemical manufacturer, shows each template in use. A short FAQ and practical takeaways close the toolkit.
Serving a China-Based Defendant Under the Hague Service Convention: A Practical Guide
When a U.S. company sues a China-based company, getting the defendant validly served is one of the first and hardest problems in the case—and getting it wrong can cost the plaintiff personal jurisdiction or leave it holding a judgment no Chinese court will enforce. This guide explains, in plain language for lawyers and business owners, how service on a Chinese defendant works under the Hague Service Convention: when the Convention applies under Volkswagenwerk v. Schlunk, how service through China's Central Authority (the Ministry of Justice) actually proceeds and how long it really takes, and why the usual shortcuts—mail under Article 10, consular service, local agents—are foreclosed by China's reservations. It then takes a hard look at the live frontier: court-ordered alternative service under FRCP 4(f)(3), email service after Rio Properties, and the Schedule A e-commerce cases where judges routinely authorize service by electronic means on elusive Chinese online sellers. It closes with the FRCP 4(d) waiver route, the SinoType contractual workaround, drafting guidance, a worked example, and an FAQ.
Authenticating Website Evidence: A Practical Checklist
Website screenshots, archived pages, and social media posts appear in nearly every modern case, and attorneys routinely lose this evidence by failing to lay a foundation. This checklist turns the law of electronic-evidence authentication into ordered, actionable steps: preserving and capturing web content the moment it is found, authenticating a live page, authenticating a historical page through the Wayback Machine the way Weinhoffer requires, proving authorship on social media, and clearing the remaining Lorraine hurdles of hearsay and the best evidence rule. It pairs each step with the governing Federal Rules of Evidence and the leading cases, and ends with the easy shortcuts—stipulations, requests for admission, and authentication by production—that can make formal authentication unnecessary. It is general information, not legal advice; authentication standards vary by jurisdiction and continue to evolve.
Preliminary Injunction and TRO Application Checklist: A Practical Checklist
An emergency motion is drafted in days and decided on an incomplete record, and the papers that succeed look like they were prepared months in advance. This checklist covers the whole package: confirming the standard in your circuit, assembling the declarations, drafting relief that is prohibitory and specific enough to be enforced by contempt, satisfying Rule 65(b) if proceeding without notice, proposing a bond, and preparing the proposed order. A separate phase covers defending an application on short notice, where the highest-value moves are asking for time, offering a standstill, and fighting on scope rather than on principle. Throughout, the emphasis is on the evidentiary record, because emergency relief is granted on declarations and exhibits rather than on argument.
Preparing Yourself or Your Witness for a Deposition: A Practical Guide
This guide walks a lawyer and a witness through deposition preparation from the day the notice arrives to the day the errata period closes. It gives a schedule of sessions with time and cost trade-offs, a decision on who the client is and how to deliver the Upjohn warning, and a method for selecting documents that survives a Rule 612 demand. It explains how to run a mock examination on video and how to give feedback without crossing into coaching. It offers separate tracks for the nervous witness, the overconfident witness, the executive, the former employee, the non-native speaker, and the person with no lawyer at all. It covers remote setup, the night before, the morning of, breaks by forum, and what happens afterward, with worked examples, sample language, and common mistakes.
Seeking or Opposing an Apex Deposition: A Practical Guide
This guide takes the lawyer seeking a senior executive's deposition, and the lawyer resisting it, through every step from the first discovery plan to the day the executive testifies. It begins with the decisions to make before acting: which forum's burden rules apply, whether the witness is a current officer, a former executive, a nonparty, or a government official, and how far the executive was personally involved in the facts. The requesting side's steps cover mapping the executive's involvement, exhausting less intrusive discovery, building a unique-knowledge evidence chart, noticing or subpoenaing the deposition, and moving to compel. The resisting side's steps cover same-day triage of the notice, investigating before anyone signs a declaration, offering alternatives, drafting the motion and proposed order, seeking review, and preparing the executive for a limited deposition. A timeline and effort table, an extended worked example built around a supply-contract dispute, common mistakes, an FAQ, and takeaways close the guide.
Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment
This article explains how federal discovery enforcement works as a ladder, from the good-faith conference that must precede a motion to compel, through mandatory fee shifting under Rule 37(a)(5), to the escalating sanctions of Rule 37(b) that end in default judgment or dismissal. It traces the Supreme Court cases that set the outer limits, including Societe Internationale v. Rogers, National Hockey League v. Metropolitan Hockey Club, Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, Pierce v. Underwood, Chambers v. NASCO, and Goodyear Tire & Rubber Co. v. Haeger. It sets out what counts as a failure to respond, why boilerplate objections and silent withholding now lose motions, and how the circuits' multi-factor tests decide when terminating sanctions are just. Separate sections cover Rules 37(c), (d), (e), and (f), 28 U.S.C. § 1927 and inherent power, magistrate judge authority and Rule 72(a), nonparty enforcement under Rule 45, and the limits on immediate appeal. An extended worked example follows a commercial case from deficiency letter to default, and the article closes with common mistakes, an FAQ, and practical takeaways for both sides.
Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse
Federal deadlines fall into three families, and the family decides whether a judge can help you. This article explains how Rule 6 counts time, including holidays, backward counting, electronic filing cutoffs that come well before midnight, and what happens when CM/ECF fails. It reads Pioneer and the circuit decisions applying it closely to show when a calendaring error is excusable and when it loses. It then separates the deadlines a court may extend from the ones it may not, tracing the line from Kontrick through Bowles, Hamer, Boechler, Harrow, Riley, and Parrish. Separate sections cover service under Rule 4(m), scheduling orders, default, relief from judgment after Kemp and Coney Island, removal, equitable tolling, and a lawyer's duty to tell the client and the carrier. Practitioners get the splits and standards of review, and everyone else gets a plain account of what can still be saved.
Motion Practice Toolkit: Dispositive, Discovery, and In Limine Motions
Motions are how a case is actually shaped, and most motions fail for reasons that have nothing to do with the merits. This toolkit covers the mechanics that determine outcomes: reading the local rules and the judge's standing order before drafting a word, satisfying the meet-and-confer requirement in a way that creates a usable record, structuring a brief so that the relief requested is obvious on the first page, and building a factual record that supports the standard actually being applied. It walks the major motion types in the order a case encounters them, from Rule 12 through discovery motions and sanctions to summary judgment and in limine practice, and closes with the craft questions that separate a persuasive brief from a competent one. A worked example runs a single commercial dispute through four motions to show how the pieces connect in practice.
Responding to Interrogatories Checklist: A Practical Checklist
Interrogatories are written questions a party must answer in writing and under oath, governed by Federal Rule of Civil Procedure 33. A clumsy response waives objections, invites a motion to compel, or locks a client into an admission that surfaces at summary judgment. This checklist walks responding counsel through the disciplined process: calendaring the 30-day deadline, reading local and judge-specific rules, counting the interrogatories including discrete subparts against the 25-question limit, conducting the reasonable inquiry, drafting specific objections that state whether anything is withheld, deciding whether to answer by producing business records under Rule 33(d), preparing a privilege log, verifying the answers under oath, diarying the continuing duty to supplement, and conferring in good faith before any motion. Each phase is paired with the reason it matters and the post-2015 rules that killed boilerplate, anchored in primary authority and the case law that decides interrogatory disputes.
Challenging Agency Action Under the Administrative Procedure Act
Challenging what a federal agency has done is a distinctive kind of litigation with its own gatekeeping requirements, its own standards of review, and its own remedies. The claim is usually not that the agency violated a statute directly but that it acted arbitrarily, exceeded its authority, or failed to follow required procedure—and the case is tried on the administrative record rather than through discovery. This guide covers the threshold requirements that dispose of most challenges before the merits, the standards of review including what the Supreme Court's abandonment of Chevron deference changed, the procedural requirements that rulemaking must satisfy, and how the record is compiled and supplemented. It then addresses remedies, timing, and the strategic choices that determine where and when a challenge should be brought.