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.
Intervening in a Federal Case or Opposing Intervention: A Practical Guide
This guide takes a nonparty, and the parties who would rather keep it out, through a federal motion to intervene from the first docket alert to the appeal. It begins with the decisions to make before filing: whether intervention is needed at all, what alternatives exist, what it costs to become a party, and which form of intervention fits the goal. Nine numbered steps for the movant cover fixing the timeliness clock, choosing the scope of intervention, confirming standing and jurisdiction, building the inadequate-representation record, conferring with the parties, drafting the motion and the proposed pleading Rule 24(c) requires, offering conditions, arguing the motion, and acting on the ruling. Six steps for the opposing party cover each line of attack and the fallback of conditioned or limited participation. Separate sections address the recurring nonparty intervenors: competitors and trade associations, insurers, federal and state governments, and the press and public seeking to unseal records. A timeline and cost table, a worked example involving a solar trade association and a proposed consent judgment, common mistakes, an FAQ, and takeaways close the guide.
Attorneys Fees and Costs: The American Rule and Its Many Exceptions
In the United States each side normally pays its own lawyer. That default—the American Rule—is why most small claims never get litigated and why fee-shifting statutes are among the most consequential provisions in American law. This article explains where the American Rule comes from, the five categories of exception, what it takes to be a prevailing party after Buckhannon and Farrar, how the lodestar is calculated and when it may be enhanced or reduced, why prevailing defendants almost never recover fees in civil rights cases, how a Rule 68 offer can strip a winning plaintiff of fees, what is and is not taxable as costs under section 1920, and how sanctions authority operates as a separate fee-shifting track.
Party Practice Toolkit: Third-Party Complaints, Intervention Motions, and Joinder Analyses
This toolkit collects the working papers of federal party practice, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rule, statute, or case. It begins with a joinder analysis worksheet and citizenship matrix that every new matter should start with, and a tender-of-defense letter to send before impleading anyone. The defendant's templates cover a Rule 19 motion outline, a third-party complaint, a motion for leave to file one late, crossclaim and Rule 13(h) paragraphs, and a Rule 21 severance motion outline. The intervention templates cover a motion to intervene with a memorandum outline, a proposed answer in intervention, a proposed order with conditions, and an opposition outline. The stakeholder's templates are an interpleader complaint skeleton and a proposed order for deposit, injunction, and discharge, and a post-removal joinder opposition and party deadline tracker close the set. A single fictional cold-storage dispute runs through every template.
Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide
This guide takes a litigator step by step from the first moment a text, chat, or post matters to a case through its admission at summary judgment and trial, and shows the opposing side what to do at each stage. It begins with decision points about the role the messages will play, who controls the source, and whether authorship will be disputed. The steps cover mapping sources and custodians, preservation and auto-delete settings, the custodian interview, choosing a collection method from screenshots to full forensic extraction and enterprise exports, review and processing, production formats and requests to the other side, the Stored Communications Act limits on subpoenas to platforms, and locking in authenticity through requests for admission, depositions, and stipulations. Later steps address authentication on summary judgment under Rule 56(c), certifications under Rules 902(11), (13), and (14), trial foundations, completeness and hearsay mapping, and the opponent's challenges, including fabrication and deepfake claims. A timeline and cost table, a worked example built on a departing-employee dispute, common mistakes, an FAQ, and takeaways close the guide.
Civil Damages Toolkit: Contract, Tort, Statutory, and Punitive Recovery
A working kit of damages instruments. Section A is a measures table covering the common claims with the formula for each. Section B is a lost profits worksheet with the fixed-versus-variable cost analysis that decides most commercial damages fights. Section C holds document templates: an itemization interrogatory, a damages document request set, an expert engagement scope, a demand letter framework, and a settlement valuation model. Section D outlines a motion to exclude and its opposition. Section E supplies jury instruction language and a verdict form. Section F collects the primary authorities.
Taking and Defending a Remote Deposition: A Practical Guide
This guide walks both the examining lawyer and the defending lawyer through a remote video deposition in federal civil litigation, from the decision to proceed remotely to the certified transcript and video. It begins with the threshold choices: whether to proceed remotely or in a hybrid format, who will be in the witness's room, which platform and recording method to use, how exhibits will be shown, and whether the witness is located abroad. Thirteen numbered steps then cover authorization, the written protocol, the notice or subpoena, the officer and vendors, exhibit preparation, witness preparation, the technology rehearsal, the opening record, conducting the examination, defending it, handling disputes and suspected coaching, closing the record, and the special rules for witnesses in other countries. Each step explains what to do, why, the governing authority, the common pitfalls, and timing. A timeline and cost table, a worked example that follows one remote deposition from notice to errata, common mistakes, an FAQ, and practical takeaways close the guide.
Drafting a Demand Letter: A Practical Checklist
A demand letter is the cheapest and often most effective tool in pre-litigation practice, but a careless one can damage a case or expose the sender to liability. This checklist walks through assessing the claim and the legal landmines before you write, assembling the eight load-bearing components of an effective letter, staying on the safe side of Federal Rule of Evidence 408 and the extortion line, complying with the Fair Debt Collection Practices Act when collecting a consumer debt, triggering and honoring the duty to preserve evidence, checking for required statutory and contractual pre-suit demands, and proving delivery. It pairs each step with the governing authority and flags the single most important caution: never threaten criminal charges to extract a civil payment. It is general information, not legal advice; the law varies by jurisdiction.
Jury Selection and Voir Dire Checklist: A Practical Checklist
Voir dire exists to identify the people who cannot be fair to your client and to build a record supporting their removal, and almost everything else lawyers do in jury selection is a distraction from that. This checklist sets the preparation sequence—learning the judge's format, deciding whether to seek a questionnaire, writing strike criteria in advance—then runs the day itself: question design that produces information rather than agreement, preserving a cause challenge before anyone offers rehabilitation, the arithmetic of a limited number of peremptory strikes, and the contemporaneous notes that answer a Batson objection. It closes with the post-verdict issues that trace directly back to what was asked and what was preserved. It closes with the Batson sequence and the record-building that makes a challenge, or a defense of one, survive appeal.
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.
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.
Apex Depositions: When Litigants Can Depose the CEO and How Companies Resist
This article explains when a party can depose a company's chief executive or another senior official and how organizations resist those depositions under what courts call the apex doctrine. It traces the doctrine from the federal discovery rules and early cases such as Salter v. Upjohn through the formal frameworks of Texas (Crown Central and Alcatel) and California (Liberty Mutual), and contrasts them with federal decisions such as Serrano v. Cintas that insist the burden stays with the party seeking protection under Rule 26(c). A separate part covers the stricter rule for high-ranking government officials, from United States v. Morgan to modern mandamus decisions protecting cabinet secretaries, mayors, and agency heads. The article then maps the open questions, including how high the doctrine reaches, whether it protects named parties and former executives, and whether it applies to startup founders. It closes with practical guidance for both sides, an extended worked example built around an employment case, common mistakes, an FAQ, and takeaways.
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.