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.
Removal and Remand: Getting a Case to Federal Court and Keeping It There
Removal is a procedural right with unforgiving deadlines, and the party that gets it wrong loses a forum choice worth more than most substantive rulings in the case. This guide covers both sides. It starts with the jurisdictional bases for removal and the requirements each imposes, then the mechanics: the thirty-day clock and when it starts, the rule of unanimity among defendants, the forum defendant rule and the snap removal practice that has grown around it, and what the notice of removal must contain. It then covers remand, including the distinction between jurisdictional defects that can be raised at any time and procedural defects waived after thirty days, the one-year limitation on diversity removals and its bad faith exception, and fee awards. Later sections address fraudulent joinder, CAFA removals and their exceptions, complete preemption, and the strategic considerations on both sides.
Answer and Affirmative Defenses Checklist: A Practical Checklist
This checklist turns the federal rules for answering a complaint into concrete, ordered tasks for the defendant, its lawyer, and the plaintiff's lawyer who has to read the answer. It starts on the day of service with the deadline, waiver, removal, preservation, insurance, and arbitration decisions, then covers the choice between answering and moving under Rule 12. It walks through the three responses Rule 8(b) allows, the Rule 9 matters that require particularity, and the selection and pleading of affirmative defenses, with a separate list of defenses that patent, copyright, and trademark defendants must plead. It then covers counterclaims, crossclaims, and third-party claims, the filing formalities, and the deadlines the answer starts. A plaintiff-side audit, a judgment-on-the-pleadings readiness list, and a default rescue list follow, and the checklist closes with common mistakes, an FAQ, and practical takeaways.
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.
Cross-Examining an Adverse Witness at Deposition: A Practical Guide
This guide walks a litigator through cross-examining an adverse witness at a deposition in federal civil litigation, from deciding what the deposition is for to using the transcript at summary judgment and trial. It begins with the threshold choices: discovery versus lock-in, whether the witness will appear at trial, and how to spend the seven-hour limit. The steps cover building a theory-driven outline in chapters, mastering and controlling the documents, opening the record, running funnels that move from open questions to locked admissions, impeachment with prior statements, handling evasive witnesses and obstructive counsel, and making a clean record. A separate step explains how Rule 30(b)(6) depositions differ, and the final steps cover closing the deposition, errata review, and use of the transcript under Rule 32 and the Evidence Rules. Each step addresses the defending side as well. A timeline and cost table, a worked example in a commercial equipment dispute, common mistakes, an FAQ, and takeaways close the guide.
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.
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.
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.
Policy-Limits Demand Checklist: A Practical Checklist
This checklist breaks a time-limited policy-limits demand into phases and concrete tasks for each participant: the claimant's lawyer, the liability insurer, defense counsel, and the insured. It starts with triage questions that decide whether a limits demand fits the case and which state's rules apply, then covers coverage confirmation, the evaluation package, liens, drafting to the governing statute, delivery, and the response period. The insurer's phases cover same-day logging, coverage review, notice to the insured, evaluation under the correct standard, information and extension requests, and acceptance, tender, or written rejection. Separate phases address defense counsel's duties, the insured's choices, multiple claimants and liens, and what to do after a demand expires. Red-flag boxes, a deadlines table, and a short section on common failure points with a worked example close the checklist.
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.
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.
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.
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.