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.

LitigationDiscovery

Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case

Rule 37(e) rewrote the law of electronic evidence destruction in 2015, and a great deal of pre-2015 authority that lawyers still cite is no longer good law. The rule now forecloses the harshest sanctions unless the court finds that a party acted with the intent to deprive another party of the information, a standard far more demanding than the negligence or gross negligence tests several circuits had used. This article explains when the duty to preserve attaches and what it covers, how to issue and enforce a litigation hold that actually works, and how courts apply the two tiers of Rule 37(e): curative measures for prejudice under subsection (e)(1) and the severe sanctions of adverse inference, dismissal, and default under subsection (e)(2). It addresses the modern preservation problems that generate most disputes, including ephemeral and disappearing messages, collaboration platforms, personal devices, cloud accounts, text messages, and auto-deletion policies, and it explains the limits of a court's inherent authority after Goodyear v. Haeger. It closes with a hold template outline, a preservation checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayMarch 30, 202526 min read

LitigationCivil Procedure

Damages Proof and Expert Model Checklist: A Practical Checklist

A working checklist for the damages side of a civil case, run in the order the case runs. It covers the damages intake, the preservation steps that keep accounting data readable, what must be pleaded and when, the discovery that builds a but-for world, a line-by-line review of an expert report before it is served, the exclusion analysis for attacking the other side's model, trial and verdict form items, and the post-judgment work on interest, costs, and collection. A defense column runs alongside throughout.

Casey Scott McKayMarch 26, 20259 min read

LitigationMass Torts

Practicing in an MDL: A Practical Guide for Plaintiff and Defense Counsel

This guide is written for the lawyer who has cases in an MDL and needs to know what to do rather than what an MDL is. It covers the JPML petition and opposition, applying for leadership and what the role actually requires, how to keep common benefit time in a form that will be approved, the case management orders that govern everything and how to read them, fact sheet and registry compliance that determines whether your cases survive, the general causation fight, bellwether selection strategy, and the settlement participation decision including the informed consent obligations that apply to every case in your inventory. It closes with lien resolution and remand.

Casey Scott McKayMarch 23, 202527 min read

LitigationDiscovery

Responding to a Third-Party Subpoena: A Practical Guide for Businesses

A subpoena arriving at a company that is not a party to the lawsuit is an operational problem before it is a legal one, and the choices made in the first two weeks determine what the response costs. The recipient has rights that most companies never exercise: a written objection alone shifts the burden of going forward to the party that issued the subpoena, significant expenses must be shifted on any order compelling production, and the issuing lawyer carries an affirmative duty to avoid imposing undue burden. This guide walks the response from the moment the envelope opens: validating service and the compliance geography, issuing a preservation hold, identifying whose confidentiality and privilege are implicated, drafting an objection that preserves everything while offering a path, negotiating scope and cost, and producing in a form that is defensible years later. It also covers government demands and testimony.

Casey Scott McKayMarch 20, 202526 min read

LitigationDiscovery

Discovery Toolkit: A Roadmap and Resource Guide for Federal Discovery

This toolkit is a high-level roadmap through civil discovery in federal court, from the Rule 26(f) planning conference to motions to compel and sanctions. It is built for litigators and the legal teams who run discovery day to day, and it walks each phase—planning, initial disclosures, written discovery, ESI and e-discovery, privilege, depositions, expert discovery, and enforcement—linking at every step to detailed mclaw.io checklists and articles plus the governing Federal Rules and the recognized authorities practitioners rely on, including the Sedona Conference and the Zubulake e-discovery line. Proportionality and the duty to preserve and disclose run through the whole process; the toolkit flags where missteps trigger preclusion or sanctions. It is a navigation guide, not case-specific advice.

Casey Scott McKayMarch 18, 202513 min read

LitigationCivil Procedure

Building a Damages Case: A Practical Guide from Pleading to Verdict

This guide runs a damages case in order, from the first client interview to the day the money arrives. It covers the damages intake that most lawyers skip, the litigation hold that preserves the proof, how to plead damages so consequential losses survive, the discovery that builds a but-for world, choosing and controlling an expert, surviving and bringing motions to exclude, valuing the case for settlement, presenting numbers a jury will accept, drafting a verdict form that protects the award, and post-trial work on interest, costs, remittitur, and collection. Each stage lists what to do, what to avoid, and what the record needs to show.

Casey Scott McKayMarch 17, 202528 min read

LitigationCivil Procedure

Proving Damages in Civil Litigation: Certainty, Causation, and the Numbers That Survive

A plaintiff can prove every element of liability and still walk out with nothing. Damages is a separate element with its own rules of proof, and the rule that kills more cases than any other is reasonable certainty: the fact of injury must be proved with reasonable certainty, and the amount must be proved with enough evidence to permit a just and reasonable estimate. This article explains how courts distinguish the fact of damage from its amount, why the foreseeability rule of Hadley v. Baxendale still decides consequential damages disputes, how mitigation shifts the arithmetic, what a damages expert must do to survive a Daubert challenge, why a damages model must match the liability theory after Comcast v. Behrend, and where the constitutional ceiling on punitive damages sits. Worked examples run the numbers.

Casey Scott McKayMarch 3, 202528 min read

LitigationPre-Litigation Practice

Writing a Demand Letter: The Basics

A demand letter is the workhorse of pre-litigation practice: a written notice that lays out the facts, the legal basis for a claim, and a specific demand with a deadline, often resolving a dispute long before a lawsuit is filed. This guide explains what a demand letter is, why it works, and how to draft one that is firm, credible, and legally safe. It covers the anatomy of an effective letter, the settlement-privilege questions that surround Federal Rule of Evidence 408, the Fair Debt Collection Practices Act traps that catch anyone collecting a consumer debt, the duty to preserve evidence that a demand letter can trigger, the statutes that require a pre-suit demand, and the critical line between vigorous advocacy and unlawful extortion (never threaten criminal charges to gain a civil advantage). A complete model letter, a worked hypothetical, and an FAQ round out the discussion. The article is general legal information, not legal advice.

Casey Scott McKayMarch 1, 202557 min read

LitigationCivil Procedure

Statute of Limitations Diary Checklist: A Practical Checklist

More claims die on the calendar than on the merits, and the failure is almost never a forgotten date. It is an accrual assumption nobody tested, a repose period nobody looked for, or a notice-of-claim deadline that ran months before the limitations period anyone was tracking. This checklist builds the discipline that prevents each: an intake analysis that lists every claim with its own period and accrual rule, a calculation from the earliest defensible accrual date rather than the latest, three calendared warnings, and a closing memorandum that preserves the analysis for the related matter that surfaces years later. It also covers the defense side, where limitations is an affirmative defense that is waived if not pleaded.

Casey Scott McKayFebruary 12, 20258 min read

LitigationJudgment

Judgment Enforcement and Collections Toolkit

Winning a judgment and collecting one are different projects with different skills, and most judgments are never collected because nobody starts the second project. This toolkit covers it from the day judgment is entered. It begins with the steps that must happen immediately, including perfecting a lien before other creditors do, then covers finding assets through postjudgment discovery and public records, the enforcement mechanisms available against each asset type, and the exemptions that will defeat some of them. Later stages address judgment debtors who have moved assets, which raises fraudulent transfer law, debtors who have moved states, which requires domestication, entities whose owners may be personally reachable, and the bankruptcy filing that stops everything and raises the separate question of whether the debt is dischargeable.

Casey Scott McKayFebruary 9, 202515 min read

LitigationClass Actions

Responding to a Consumer Class Action Demand Letter

A pre-suit demand letter asserting class claims is a very different document from an individual demand, because the sender is not trying to resolve one customer's problem — they are testing whether a practice is worth suing over. The recipient's response, or the absence of one, tells them. This guide covers what to do in the first two weeks, how to evaluate the underlying claim and the realistic class exposure rather than the number in the letter, the statutory notice-and-cure provisions that make a prompt response genuinely valuable, how arbitration clauses and class waivers change the analysis and where mass arbitration has changed it back, when to settle individually and when doing so invites the next letter, and what a classwide resolution actually requires. It closes with serial demand programs, the regulatory track that runs alongside the private one, and the internal relationships that make a fast factual answer possible.

Casey Scott McKayJanuary 28, 202525 min read

LitigationDepositions

Rule 30(b)(6) Deposition Preparation Checklist: A Practical Checklist

A Rule 30(b)(6) deposition is a deposition of the organization rather than of a person, and the duty is to prepare the organization's answer rather than to produce someone who happens to know things. Producing an unprepared designee is treated as a failure to appear, with sanctions that include a second deposition at the organization's expense and preclusion of testimony on the topics the witness could not address. This checklist runs both sides of the exercise: for the noticing party, drafting topics with reasonable particularity, conferring as the 2020 amendment requires, and building the examination that establishes either the organization's position or its unpreparedness; and for the responding party, objecting and conferring, designating and allocating topics in writing, and running a preparation process that is measured in days rather than hours. It closes with the post-deposition steps, including errata practice, supplementation, and the sanctions motion whose preclusion component is what actually changes cases.

Casey Scott McKayJanuary 24, 202511 min read