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.
Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist
This checklist breaks federal discovery enforcement into phases that a litigation team can work through in order, from preventive steps at the Rule 26(f) conference to a motion for sanctions under Rule 37(b). Each item is a concrete task tied to the governing rule or case, with short notes on how courts apply it. The requesting party's phases cover reviewing responses, writing the deficiency letter, conferring and recording the conference, choosing the procedure, drafting and supporting the motion, requesting and proving expenses, and enforcing the order. Separate phases cover the responding party's defense and cure, nonparty enforcement under Rule 45, and the specialized routes of Rules 37(c), (d), and (e). Red-flag boxes, a deadlines table, a short worked example, and a list of common failure points complete the checklist.
Rule 30(b)(6) Deposition Preparation Checklist: A Practical Checklist
A Rule 30(b)(6) deposition is a deposition of the organization rather than of a person, and the duty is to prepare the organization's answer rather than to produce someone who happens to know things. Producing an unprepared designee is treated as a failure to appear, with sanctions that include a second deposition at the organization's expense and preclusion of testimony on the topics the witness could not address. This checklist runs both sides of the exercise: for the noticing party, drafting topics with reasonable particularity, conferring as the 2020 amendment requires, and building the examination that establishes either the organization's position or its unpreparedness; and for the responding party, objecting and conferring, designating and allocating topics in writing, and running a preparation process that is measured in days rather than hours. It closes with the post-deposition steps, including errata practice, supplementation, and the sanctions motion whose preclusion component is what actually changes cases.
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.
Hearsay and Business Records Checklist: A Practical Checklist
This checklist turns hearsay and business records practice into tasks you can tick off from the first discovery plan to the verdict. Each phase names the governing rule or case, with short notes and red flags where exhibits commonly fail. It separates steps for the party offering records from steps for the party opposing them. Phases cover classification, third-party data, system and AI output, certifications and notice, summaries, summary judgment, pretrial objections, trial, and criminal cases. It is built to be printed and used on a desk alongside the exhibit list.
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.
Amended Pleading and Relation Back Checklist: A Practical Checklist
This checklist turns the federal rules on amended and supplemental pleadings into a sequence of concrete tasks, from the first scheduling conference through trial. It covers protecting the right to amend at the outset, choosing the correct route (amendment as a matter of course, consent, or leave), testing each relation-back route under Rule 15(c), and drafting, filing, and serving the amended pleading. A separate phase gives the opposing party's tasks, and later phases address supplemental pleadings under Rule 15(d) and amendments during and after trial under Rule 15(b). Red-flag boxes mark the points where amendments most often fail, and a deadlines table collects the governing time limits. The checklist closes with common failure points and a short worked example involving a misnamed corporate defendant.
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.
Drafting and Opposing Motions in Limine: A Practical Guide
This guide takes a trial team through motions in limine from the first reading of the judge's trial procedures to the last objection at trial, and gives the opposing party a parallel path at each step. It starts with the decisions to make before drafting: which issues need a pretrial ruling, which are better left to trial, and how a cap on the number of motions changes the calculus. The numbered steps cover building the calendar, inventorying the evidence, ranking and selecting motions, conferring and stipulating, framing each request, building the evidentiary record, drafting the brief and proposed order, handling expert motions under the amended Rule 702, opposing a motion, arguing it at the pretrial conference, and implementing the rulings at trial. Each step explains what to do, why, the governing authority, the common pitfalls, timing, and cost. A timeline and cost table, an extended worked example from a trucking collision case, common mistakes, an FAQ, and takeaways close the guide.
Planning and Running a Litigation Settlement Negotiation: A Practical Guide
This guide takes a litigator from the decision to explore settlement through a signed term sheet, in thirteen steps that work for plaintiffs and defendants alike. It shows how to value a case as a range of outcomes net of fees, time, interest, taxes, liens, and collection risk, and how to turn that valuation into a reservation price and a target. It covers confirming client authority and interests, improving the alternative to settlement before talks begin, choosing between direct talks, private mediation, and a judicial settlement conference, and building an opening strategy and a written concession plan. It then walks through mediation preparation, including the mediation statement and the decision whether to hold a joint opening session, and running the day itself, from first caucus to brackets and mediator's proposals. The final steps cover closing the gap, writing a binding term sheet at the table that anticipates enforcement under Kokkonen, and documenting the result, followed by a timeline and cost table, a worked example in a software dispute, common mistakes, an FAQ, and takeaways.
Drafting an Answer and Affirmative Defenses: A Practical Guide
This guide walks a defendant's lawyer, or a defendant without one, through drafting a federal answer in the order the work actually happens, from the day the complaint arrives to the two weeks after filing when the jury-demand and third-party windows close. It explains how to compute and extend the Rule 12(a) deadline without giving anything away, how to decide between a Rule 12 motion and an answer, and how to investigate before admitting or denying anything. It then shows how to build a paragraph-by-paragraph response chart using the three responses Rule 8(b) allows, how to screen affirmative defenses with three questions about burden, facts, and cost, and which statutory defenses intellectual property defendants must plead. It covers compulsory and permissive counterclaims, crossclaims, and third-party complaints, the components and companion filings of the pleading, a pre-filing review, and the deadlines the answer itself triggers. It closes with strategy for each side, costs, common mistakes, a worked example in which a software company answers a photo-licensing copyright complaint, an FAQ, and practical takeaways.
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.
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.