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.

LitigationLitigation Finance

Third-Party Litigation Funding: Structures, Privilege, and Disclosure Obligations

Litigation funding has moved from a curiosity to an ordinary feature of large commercial disputes, and the legal framework has not entirely caught up with it. The doctrinal obstacles that once made these arrangements unenforceable — champerty, maintenance, and usury — have eroded unevenly, so that an arrangement lawful in one state may be void in the next. The live questions today are less about legality than about disclosure, privilege, and control: whether the funding agreement must be produced, whether sharing case assessments with a funder waives work product, and how much influence a funder can exercise before it compromises counsel's independent professional judgment. This article covers the structures in use, the doctrinal state of play, the disclosure rules now emerging in federal and state courts, and the diligence a party should do before signing.

Casey Scott McKayJanuary 22, 202525 min read

LitigationCivil Rights

Bringing and Defending a Section 1983 Claim: A Practical Guide

This guide takes a Section 1983 case from the first client meeting through fee petition, on both sides. It covers the intake screening that identifies whether a viable federal claim exists, the very short state notice of claim deadlines that destroy parallel state claims, the preservation letters and public records requests that must go out within days, how to draft a complaint that survives a qualified immunity motion, the Monell discovery plan that determines case value, the interlocutory appeal that will delay everything, damages proof, and the fee petition that is frequently worth more than the judgment. It closes with settlement structures that include policy change.

Casey Scott McKayJanuary 13, 202528 min read

LitigationCommencement and Pleadings

Service of Process: Domestic and International Methods That Work

Service is the step that seems clerical and is jurisdictional, and a case can be dismissed years in because nobody checked whether the person who accepted the papers was authorized to receive them. This guide covers the mechanics that work. It starts with waiver of service, which is faster and cheaper than anyone expects and which most litigants ignore, then the methods for serving individuals, corporations, limited liability companies, partnerships, and government entities, including the state law alternatives Rule 4 incorporates. It covers the ninety-day deadline and the good cause and discretionary extension standards, service on evasive defendants and by publication, and the due process floor. The second half addresses international service under the Hague Service Convention, including the central authority process, the Article 10 mail question the Supreme Court resolved in Water Splash, service in China and other objecting states, and the court-ordered alternative service that has become common for foreign online defendants.

Casey Scott McKayDecember 23, 202426 min read

LitigationJudgment

Collecting a Judgment: Discovery in Aid of Execution, Liens, Levies, and Garnishment

Winning a lawsuit and getting paid are different projects, and the second one is usually harder. A money judgment is not an order to pay; it is a license to use the state's collection machinery, and nothing happens until the creditor uses it. This article explains that machinery from the first day after entry through final satisfaction. It covers the stay of execution and when enforcement may begin, the discovery tools that let a creditor find assets including the judgment debtor examination and third-party subpoenas, and how to record a judgment lien against real property. It then works through the enforcement remedies themselves: writs of execution and levies on tangible property, bank account levies, wage garnishment and the federal caps under the Consumer Credit Protection Act, charging orders against interests in partnerships and limited liability companies, turnover orders, receiverships, and contempt. Sections on exemptions and how debtors use them, fraudulent transfer claims under the Uniform Voidable Transactions Act, enforcing judgments in other states and countries, judgment renewal and post-judgment interest, and the bankruptcy filing that stops everything follow, with a strategy checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayDecember 7, 202425 min read

LitigationPre-Litigation Practice

Responding to a Cease and Desist Letter: A Practical Guide

A cease and desist letter is a demand, an offer to negotiate, and an attempt to establish knowledge for a later willfulness claim, all at once. The recipient's first decisions — whether to preserve, whether to respond, whether to stop the conduct, and whether to sue first — are made under time pressure with incomplete information, and they shape everything that follows. This guide covers what to do in the first forty-eight hours, how to evaluate the underlying claim on its merits and on the sender's real leverage, when a declaratory judgment action makes sense and what makes one available, how to draft a response that advances the recipient's position rather than creating admissions, and how the analysis differs across the recurring categories: trademark, copyright, patent, trade secret, restrictive covenant, defamation, and contract. It closes with the sender's perspective, an intake checklist, and a note on why the first instinct — to answer the accusation personally and immediately — is the one that causes the most damage.

Casey Scott McKayDecember 5, 202425 min read

LitigationCivil Litigation Strategy

Evaluating and Assessing a Civil Case

Evaluating a civil case is the discipline of deciding, before you spend real money, whether a claim is worth bringing or worth fighting. This guide walks through the full assessment: intake and conflicts, the elements of the claim and who bears the burden of proof, the separate questions of liability and damages, whether any judgment can actually be collected, threshold defenses like the statute of limitations and jurisdiction, and the economics of fee arrangements and litigation budgets. It then turns numbers into decisions using decision trees and expected-value analysis to find a rational settlement range. Worked hypotheticals and primary authority make the framework concrete for clients, counsel, and the occasional skeptical judge. The aim is to replace gut feeling with a repeatable method for separating cases worth pursuing from cases worth declining.

Casey Scott McKayDecember 4, 202431 min read

LitigationGovernment Litigation

Sovereign Immunity and Suing the Government: The FTCA, Section 1983, and State Tort Claims Acts

Suing a government defendant is procedurally unlike suing anyone else, and the procedural traps are more often fatal than the substantive defenses. Every claim begins with a waiver of sovereign immunity, and the waiver defines the forum, the deadline, the available damages, and whether a jury will hear the case. This article works through the principal routes: the Federal Tort Claims Act with its mandatory administrative claim and its discretionary function exception, Section 1983 against state and local officials with its Monell and qualified immunity limits, the narrowing Bivens remedy against federal officers, Eleventh Amendment immunity and the Ex parte Young workaround, and state tort claims acts with their short notice periods and damages caps. It closes with the deadlines that dispose of more of these cases than any doctrine.

Casey Scott McKayDecember 1, 202425 min read

LitigationEvidence

Expert Disclosure and Daubert Challenge Checklist: A Practical Checklist

Expert practice fails in two places: the disclosure, which is mechanical and unforgiving, and the reliability challenge, which the December 2023 amendment to Rule 702 made materially easier to win. This checklist covers both, from selecting an expert whose qualifications match the specific opinion through preparing the report, taking and defending the deposition, and briefing or opposing a motion to exclude. It incorporates the amended rule's two changes: the proponent must demonstrate admissibility by a preponderance, and the opinion must reflect a reliable application of the methodology, which forecloses the once-standard argument that application questions go only to weight. Each phase is paired with the reason it matters and the governing rule or case.

Casey Scott McKayNovember 4, 20248 min read

LitigationOther Specialist Litigation

Product Liability for Manufacturers, Distributors, and Sellers

Any business that makes, imports, distributes, or sells a physical product can be sued when that product hurts someone, and the claim usually does not require proof that anyone was careless. This article explains the three theories that carry product cases and the three defect categories courts recognize. It covers strict liability's origins in Greenman and section 402A, the manufacturing defect claim that is essentially self-proving, the design defect claim and the divide between the consumer expectations and risk-utility tests, and the failure-to-warn claim that generates most modern litigation. It then works through the parallel negligence and warranty theories, why the warranty claim survives when the tort claim is barred, and the disclaimers and limitations that do and do not work under the Uniform Commercial Code and the Magnuson-Moss Warranty Act. A long section covers the defenses that actually decide cases: federal preemption after Riegel and Wyeth, the state of the art and compliance defenses, misuse and alteration, comparative fault, the learned intermediary and sophisticated user doctrines, statutes of repose, and the sealed container statutes that protect innocent retailers. It closes with compliance and recall obligations, insurance, contractual risk allocation up and down the supply chain, a worked example, checklists, an FAQ, and related reading.

Casey Scott McKayOctober 16, 202425 min read

LitigationSpeech and Media

Filing an Anti-SLAPP Motion: A Practical Guide

An anti-SLAPP motion is a powerful and unforgiving procedural device: filed correctly it ends a case in ninety days with a mandatory fee award, and filed carelessly it educates the plaintiff, generates an adverse ruling, and in some jurisdictions exposes the movant to the plaintiff's fees. The two-step analysis is deceptively simple and the failures cluster in the first step, where the question is not whether speech was involved but whether the protected activity supplies the elements of the claim. This guide runs the motion from the intake evaluation through the evidentiary record, the opposition, the hearing, the fee application, and the appeal, with attention to the deadline, the discovery stay, and the exemptions that defeat otherwise strong motions. It also covers the forum questions — removal, choice of law, and the federal circuit split — that must be resolved before anything is filed.

Casey Scott McKayOctober 7, 202426 min read

LitigationPersonal Injury

Personal Injury Claim Intake and Evaluation Checklist: A Practical Checklist

A personal injury case is won or lost in the first thirty days, usually on facts that are cheap to preserve and impossible to recreate. This checklist runs the intake and evaluation in the order the clock requires: conflicts and limitations first, then the liability and coverage investigation that determines whether the case is economically viable at all, then preservation, then the damages and lien picture that determines what the client will actually net. It includes explicit rejection criteria, a coverage map, a preservation letter inventory, and a valuation worksheet. It is written to be used by a lawyer at a first meeting or by a claimant organizing a claim alone.

Casey Scott McKayOctober 3, 202410 min read

LitigationMass Torts

Multidistrict Litigation and Mass Torts: How Thousands of Cases Become One Proceeding

Multidistrict litigation now accounts for a majority of the federal civil docket, and almost none of what happens in it appears in the Federal Rules. This article explains the machinery: how the Judicial Panel decides whether to centralize, what a transfer judge can and cannot do, how leadership is appointed and paid, how plaintiff fact sheets and census registries replace ordinary discovery, how bellwether trials are selected and what they are actually for, and how global settlements are structured and administered. It covers the doctrinal limits established by Lexecon and Gelboim, the general causation gatekeeping that ends entire litigations, and the ethical constraints on aggregate settlement that bind every lawyer with a book of cases.

Casey Scott McKaySeptember 5, 202428 min read