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

Responding to Requests for Production Checklist: A Practical Checklist

Requests for production under Federal Rule of Civil Procedure 34 are the workhorse of modern civil discovery, and the quality of a party's response often determines whether a case is won, settled, or sanctioned. This checklist walks responding counsel through the disciplined sequence: docketing the 30-day deadline, issuing or confirming the litigation hold, mapping each request to a claim or defense, negotiating scope and an ESI protocol (including a Rule 502(d) clawback order), collecting and reviewing ESI defensibly, drafting request-by-request responses that object with specificity and — critically — state whether documents are being withheld under Rule 34(b)(2)(C), producing in the agreed format, and supplementing under Rule 26(e). Each phase is paired with the reason it matters and the traps that draw sanctions, anchored in the 2015 amendments and the case law killing the boilerplate objection. The goal is a clean, reasonable, well-documented process a court will credit.

Casey Scott McKaySeptember 4, 20249 min read

LitigationPatent Litigation

Comprehensive Guide to Patent Infringement Litigation: From Summary Judgment Denial to Post-Trial

This guide walks through the full life cycle of a United States patent infringement lawsuit, from where it can be filed through the final appeal, using a single running hypothetical to make each stage concrete. It explains subject-matter jurisdiction and venue after TC Heartland and In re Cray, modern pleading standards following the abrogation of Form 18, claim construction under Markman and Phillips, and the proof of literal infringement, infringement under the doctrine of equivalents, and indirect and divided infringement. It then turns to invalidity and the interplay between district court litigation and inter partes review at the Patent Trial and Appeal Board, summary judgment, and why a denial channels a case toward trial. The trial discussion covers infringement, validity, willfulness under Halo v. Pulse, and damages under Georgia-Pacific and Panduit, including apportionment, price erosion, convoyed sales, and enhancement. Finally, the article addresses Rule 50 motions and preservation, new trials and remittitur, permanent injunctions and ongoing royalties under eBay v. MercExchange, attorney's fees, and appeal to the Federal Circuit. Every term of art is explained in plain language for judges, practitioners, and non-lawyers alike.

Casey Scott McKaySeptember 3, 202459 min read

LitigationPre-Litigation Practice

Responding to a Government Subpoena or Civil Investigative Demand: A Practical Guide

A subpoena or civil investigative demand arrives without warning and starts several clocks at once, most of which are shorter than they appear. This guide walks the response from the first hour through production and beyond. It covers what to do immediately, including the litigation hold that must issue before anyone reads the demand carefully, and how to determine what kind of process you have received and what that tells you about the investigation. It then covers scope negotiation with the government, which is expected and almost always productive, the mechanics of collection and production, privilege review and logging, and the special problems presented by individual employees who may need separate counsel. Later sections address parallel civil and criminal proceedings, the decision whether to cooperate or contest, obstruction risk, and what a company should have done before any of this arrived.

Casey Scott McKayAugust 22, 202424 min read

LitigationMotions

Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court

An emergency motion is the most consequential piece of paper many litigators ever file. It is written in days rather than months, decided on an incomplete record, and often determines the outcome of the case regardless of what happens later. This article explains how temporary restraining orders and preliminary injunctions actually work in federal court: the four factors of Winter v. NRDC and how the circuits differ in weighting them, the difference between prohibitory and mandatory injunctions and why the label matters, the strict limits Rule 65(b) places on ex parte relief, the bond requirement of Rule 65(c) and how to argue about its amount, and the specificity and binding-scope rules of Rule 65(d). It addresses irreparable harm as the factor that decides most motions, including the statutory presumption restored for Lanham Act cases by the Trademark Modernization Act and the Supreme Court's insistence in Starbucks v. McKinney that statutory injunction provisions be read against the traditional equitable backdrop. It covers the practical mechanics of moving and opposing, expedited discovery, evidentiary hearings, consolidation under Rule 65(a)(2), appeal under 28 U.S.C. section 1292(a)(1), and the recent narrowing of universal injunctions. It closes with drafting guidance, a worked example, an FAQ, and related reading.

Casey Scott McKayAugust 17, 202427 min read

LitigationTrial and Post-Trial

Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions

A jury trial is a sequence of decisions made under time pressure, each of which either preserves an issue or waives it. This toolkit organizes the sequence: the pretrial order and in limine motions that determine what the jury will hear, the selection process that determines who hears it, the evidentiary foundations that get exhibits admitted, the objections and offers of proof that preserve error, the Rule 50 motions that must be made at specific moments to survive, the instructions and verdict form that frame deliberation, and the post-trial motions with their own short and jurisdictional deadlines. It is written for the lawyer preparing a case that will actually be tried. It ends with the verdict form, the instruction conference, and the post-trial motions where preserved issues either mature into relief or quietly expire.

Casey Scott McKayAugust 10, 202414 min read

LitigationBusiness Torts

Tortious Interference and Unfair Competition Claims Between Businesses

When a competitor hires away a sales team, a supplier stops shipping after a rival calls, or a customer walks away mid-contract, the claim businesses reach for is tortious interference. It is also the claim they most often lose, because competition is privileged and the line between aggressive selling and improper interference is drawn by a doctrine that varies by state. This article explains both interference torts element by element, the competition privilege and the independently wrongful conduct requirement that most states impose for prospective relations, and the justification defenses. It then covers the adjacent claims that usually travel with it: common law unfair competition, breach of fiduciary duty and aiding and abetting, civil conspiracy, and unjust enrichment, along with the preemption and economic loss doctrines that eliminate several of them. Later sections address proof and damages, injunctive relief, defenses including Noerr-Pennington and the litigation privilege, and how to plead and defend these cases.

Casey Scott McKayAugust 7, 202426 min read

LitigationDiscovery

Rule 45 Subpoena Response Checklist: A Practical Checklist

A subpoena to a company that is not a party to the lawsuit is a deadline problem before it is a legal problem, and the most valuable action available — a timely written objection — takes an afternoon and shifts the entire burden of going forward to the party that issued it. This checklist runs the response in the order the clock requires: validate service and the compliance geography on day one, issue a preservation hold, identify whose privilege and confidentiality are implicated, serve a specific objection with a quantified burden showing and a narrowed proposal before day fourteen, then negotiate scope, cost, and format. It closes with production mechanics, testimony, and the motion practice that follows if negotiation fails. It closes with the privilege log, the cost-shifting request, and the protective order terms worth negotiating before anything is produced.

Casey Scott McKayAugust 3, 20248 min read

LitigationAppeals

Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win

An appeal is not a second trial. It is a review of what the trial court did with what it was given, which means the appeal was largely won or lost in the district court by lawyers who may never have thought about it. This article explains federal appellate practice from that perspective. It covers appellate jurisdiction, including the final judgment rule, the narrow exceptions of section 1292, Rule 54(b) certification, and the collateral order doctrine; the jurisdictional deadline for the notice of appeal and the motions that toll it; and the standards of review that determine what an appellate court is actually permitted to do, with practical guidance on characterizing issues to obtain the most favorable standard. A long section addresses preservation, including the objection requirements at trial, the interaction between denied summary judgment motions and Rule 50 after Ortiz v. Jordan and Dupree v. Younger, and the plain error and harmless error doctrines. It then turns to craft: assembling the record, selecting issues, structuring the statement of the case, writing an argument that respects the standard of review, oral argument preparation, and post-decision options including panel rehearing, rehearing en banc, and certiorari. It closes with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayJuly 26, 202425 min read

LitigationCross-Border Litigation

Cross-Border IP Litigation and Service Toolkit: A Roadmap and Resource Library for International Disputes

This toolkit is a high-level roadmap for litigating intellectual property disputes that cross borders, from assessing the dispute through service abroad under the Hague Service Convention (with special attention to China), establishing jurisdiction, managing parallel proceedings and forum selection, coordinating global patent and trademark enforcement, gathering evidence abroad, enforcing foreign judgments, and deploying anti-suit injunctions in FRAND wars. Each stage links to mclaw.io articles and checklists plus the controlling conventions, statutes, and cases, including the Hague Service and Evidence Conventions, 28 U.S.C. § 1782, PACER, WIPO, and Water Splash v. Menon. It is written for litigators, in-house counsel, and IP owners coordinating enforcement across the United States, China, Europe, and beyond. Use the narrative to orient and the resource links to execute. The toolkit flags traps in service on Chinese defendants and the unsettled state of anti-suit and anti-anti-suit injunctions in standard-essential-patent disputes. Verify treaty reservations, central-authority requirements, and timelines at the official sources before relying on them.

Casey Scott McKayJuly 22, 202413 min read

LitigationCivil Rights

Section 1983 Civil Rights Litigation: Color of Law, Monell, and Qualified Immunity

Section 1983 is the statute that lets a person sue a government official for violating the Constitution, and almost every difficult question in the field is about who can be sued rather than what was done. This article works through the architecture: the color of law requirement, the individual capacity claim and the qualified immunity defense that dominates it, municipal liability under Monell and why respondeat superior does not apply, the Eleventh Amendment and the Ex parte Young workaround, and the fee shifting provision that makes the whole enterprise economically possible. It covers the most litigated claim types, the Heck bar that traps claims arising from arrests, and the practical realities of damages and settlement.

Casey Scott McKayJuly 19, 202429 min read

LitigationDamages

Damage Statistics: Administrative and Government Litigation

Suing the government is not like suing your neighbor. Before a dollar of damages is on the table, the plaintiff must find a statute in which the sovereign has consented to be sued, and each consent statute comes with its own ceiling, its own forum, and its own list of things it will not pay for. This guide maps the damages landscape across the major vehicles: the Federal Tort Claims Act, the Tucker Act and the Court of Federal Claims, Section 1983 civil-rights suits and the qualified-immunity wall, Bivens claims, Fifth Amendment takings, the Administrative Procedure Act (which buys you an injunction, not a check), and the Equal Access to Justice Act fee-shifting statute. It explains how damages are proven and capped when the defendant is a government, why honest "average award" numbers are hard to come by, and how a careful lawyer values a case against a public defendant. The hard figures the input promised do not exist in any reliable public dataset, so this article frames ranges and sources honestly rather than inventing verdict statistics.

Casey Scott McKayJuly 17, 202441 min read

LitigationMotions

Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants

A motion to dismiss is the first real fight in most federal cases, and it is decided on a record consisting of exactly one document. This guide explains how Rule 12 actually works: the seven enumerated defenses, the strict consolidation and waiver rules of Rule 12(g) and 12(h) that destroy more defenses than any judge ever does, and the sequencing questions courts face when jurisdiction, venue, and merits arguments arrive together. It covers the plausibility standard of Twombly and Iqbal in operational terms, including the two-step method courts actually use, the limits the Supreme Court reaffirmed in Erickson and Johnson v. City of Shelby, and the heightened pleading regimes of Rule 9(b) and the securities laws. It explains what a court may consider without converting the motion to summary judgment, the doctrines of incorporation by reference and judicial notice and how they are abused, and the standards for facial and factual attacks under Rule 12(b)(1). It then turns to strategy: when a motion is worth filing, when it merely educates the plaintiff, how to use Rule 12(e) and 12(f), how leave to amend works under Foman v. Davis, and how to write an opposition that survives. It closes with drafting checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayJune 25, 202425 min read