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.

LitigationProfessional Liability

Professional Malpractice: Standards of Care, Expert Proof, and Defenses

Every professional malpractice case has the same four elements and a fifth practical requirement that decides most of them: expert testimony establishing what a reasonably careful practitioner would have done. This article covers the elements as they actually operate across professions, the procedural gatekeeping devices that dispose of claims before discovery, and the defenses that succeed. It works through legal malpractice and its distinctive case-within-a-case causation requirement, medical malpractice with its certificate of merit statutes and damages caps, accounting malpractice and the privity limits on third-party claims, and design professional liability with its economic loss rule problem. It closes with the limitations rules that are more complicated in this area than in any other tort, and with what a professional firm should do the day a mistake is discovered.

Casey Scott McKayNovember 1, 202325 min read

LitigationDiscovery

Strategic Responses to Requests for Admission: A Comprehensive Guide for Legal Practitioners

Requests for admission under Federal Rule of Civil Procedure 36 are a distinct discovery device aimed not at gathering facts but at narrowing the issues for trial, authenticating documents, and eliminating the need to prove undisputed matters. This guide explains the rule's mechanics in plain language: the unforgiving 30-day deadline and the automatic-admission trap, the four permissible forms of response (admit, deny, qualified, and lack of knowledge after reasonable inquiry), the limited grounds for objection, and the special category of requests that ask a party to apply law to fact. It examines the conclusive effect of admissions under Rule 36(b), the demanding two-part standard for withdrawing or amending them, and the rule that a Rule 36 admission binds the party only in the pending action. It walks through the three motions unique to admission practice -- the motion to determine sufficiency under Rule 36(a)(6), the motion to withdraw or amend under Rule 36(b), and the cost-shifting sanctions motion under Rule 37(c)(2) -- and closes with strategic drafting guidance and fully worked model requests and responses. Throughout, the article uses concrete hypotheticals and primary authority so that judges, practitioners, and non-lawyers alike can follow the analysis.

Casey Scott McKayOctober 20, 202361 min read

LitigationSecurities Litigation

Securities Fraud Litigation Under Rule 10b-5: Elements, the PSLRA, and Defense Strategy

A securities fraud class action is a specialized proceeding with its own pleading rules, its own gatekeeping mechanisms, and a damages model that can exceed a company's market capitalization. This article explains how these cases work from the defense side. It covers the elements of a Rule 10b-5 claim, including the materiality standard, the scienter requirement and the strong inference test, and the reliance presumption that makes class treatment possible along with the price impact rebuttal that has become the central battleground at certification. It then covers the Private Securities Litigation Reform Act's heightened pleading requirements, the automatic discovery stay, the lead plaintiff process, and the safe harbor for forward-looking statements. Later sections address Securities Act claims under Sections 11 and 12 which require no scienter, opinion statements after Omnicare, omissions after Macquarie, class certification, damages models, settlement dynamics, and directors and officers insurance.

Casey Scott McKayOctober 18, 202325 min read

LitigationDiscovery

Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege

Nonparty discovery is the only place in the federal rules where a litigant's need for evidence is balanced against the interests of someone with no stake in the case, and the balance is unusually protective: a written objection shifts the burden of going forward, significant expense must be shifted, and the issuing lawyer carries an affirmative and sanctionable duty of restraint. This toolkit runs the process from both sides — issuing a subpoena that will actually produce documents, and responding to one without spending more than necessary — and covers the sector-specific statutes that override Rule 45 entirely for communications providers, health care providers, financial institutions, and government agencies. It works from the issuing lawyer's side and the recipient's side in parallel, then addresses privilege, cost-shifting, and the statutes that bar production outright. A separate stage covers the statutes that bar production outright regardless of how the subpoena is worded.

Casey Scott McKayOctober 5, 202313 min read

LitigationPre-Litigation Practice

Regulatory Investigations Toolkit

A civil investigative demand, an administrative subpoena, or agents at the reception desk each start a process in which the company's first week determines much of the outcome. Preservation failures become obstruction allegations, an uncounseled employee interview becomes a false statement charge, and a document production assembled without a privilege protocol waives protections that cannot be recovered. This toolkit runs the sequence: the first forty-eight hours by inquiry type, building the response team and preserving evidence, scoping and conducting the internal investigation under privilege, negotiating and executing the production, managing employees and parallel individual exposure, deciding whether and how to cooperate or disclose, and resolving the matter with remediation that actually addresses what went wrong. It closes with remediation, which is what regulators actually evaluate and what determines whether a monitorship is imposed.

Casey Scott McKaySeptember 30, 202315 min read

LitigationDiscovery

Internal Investigation and Upjohn Warning Checklist: A Practical Checklist

An internal investigation is the moment a company decides how much protection its findings will have, and most of that is determined in the first two days. This checklist covers the sequence that preserves privilege and produces a usable result: confirming who directs the investigation and why, scoping it in writing, issuing a hold, engaging consultants through counsel, giving and documenting Upjohn warnings at every interview, writing interview memoranda that qualify as opinion work product, reaching and recording findings, taking proportionate corrective action, and making the disclosure decision deliberately. It flags the recurring failure modes, including the investigation that begins in HR and is handed to legal later, and the forensic vendor retained by the business rather than by counsel. Used from the first phone call, it keeps the record clean enough that the company can later choose whether to waive privilege rather than discovering it never had any.

Casey Scott McKaySeptember 30, 20238 min read

LitigationClass Actions

Class Actions Under Rule 23: Certification, Settlement, and Defense Strategy

A class action lets one lawsuit resolve claims for thousands of people who will never appear in court, which is either an indispensable tool for aggregating small harms or a machine for manufacturing settlement pressure, depending on which side of the caption you occupy. Both descriptions are sometimes true. This article explains how Rule 23 actually works, from the four prerequisites of Rule 23(a) through the three categories of Rule 23(b), with attention to the doctrinal fights that decide most cases: the commonality standard after Wal-Mart v. Dukes, the damages-model requirement of Comcast v. Behrend, the treatment of individualized issues and representative proof after Tyson Foods, ascertainability and the circuit split over it, and the standing problem for uninjured class members after TransUnion v. Ramirez. It covers settlement approval under the amended Rule 23(e), the role and regulation of objectors, interlocutory review under Rule 23(f), and federal jurisdiction under the Class Action Fairness Act. It then turns to strategy for both sides, including the arbitration and class waiver defense that has reshaped consumer litigation. It closes with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKaySeptember 8, 202326 min read