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.
Evaluating and Assessing a Civil Case
Evaluating a civil case is the discipline of deciding, before you spend real money, whether a claim is worth bringing or worth fighting. This guide walks through the full assessment: intake and conflicts, the elements of the claim and who bears the burden of proof, the separate questions of liability and damages, whether any judgment can actually be collected, threshold defenses like the statute of limitations and jurisdiction, and the economics of fee arrangements and litigation budgets. It then turns numbers into decisions using decision trees and expected-value analysis to find a rational settlement range. Worked hypotheticals and primary authority make the framework concrete for clients, counsel, and the occasional skeptical judge. The aim is to replace gut feeling with a repeatable method for separating cases worth pursuing from cases worth declining.
Messaging and Social Media Evidence Checklist: A Practical Checklist
This checklist turns the collection and authentication of text messages, chats, direct messages, and social media posts into phased, check-off tasks for the party offering them and the party challenging them. It runs from triage and preservation (including auto-delete settings and device quarantine) through custodian interviews, collection with chain of custody and hash values, review and production, discovery from opponents and nonparties within the limits of the Stored Communications Act, and locking in authenticity with requests for admission and depositions. Later phases cover summary judgment declarations, Rule 902 certifications and notice, pretrial disclosures and the 14-day objection window, motions in limine, and the trial foundation, including hearsay mapping and completeness. Red-flag boxes mark the points where cases are most often lost. A deadlines table, common failure points, and a short worked example close the checklist.
Sovereign Immunity and Suing the Government: The FTCA, Section 1983, and State Tort Claims Acts
Suing a government defendant is procedurally unlike suing anyone else, and the procedural traps are more often fatal than the substantive defenses. Every claim begins with a waiver of sovereign immunity, and the waiver defines the forum, the deadline, the available damages, and whether a jury will hear the case. This article works through the principal routes: the Federal Tort Claims Act with its mandatory administrative claim and its discretionary function exception, Section 1983 against state and local officials with its Monell and qualified immunity limits, the narrowing Bivens remedy against federal officers, Eleventh Amendment immunity and the Ex parte Young workaround, and state tort claims acts with their short notice periods and damages caps. It closes with the deadlines that dispose of more of these cases than any doctrine.
Privilege Clawback and Rule 502 Checklist: A Practical Checklist
This checklist turns Rule 502 and clawback practice into check-off tasks for the whole life of a case. It starts before discovery, with the order to obtain and the language to use, then moves through building a defensible privilege review and testing each production before it leaves. Separate phases cover the producing side's first day after a mistake, deposition emergencies, the receiving side's duties, motion practice, and review of a ruling. Each item names its authority, with notes and red flags drawn from reported cases. It is designed to be printed and used at a desk.
Federal Jurisdiction and Removal Checklist: A Practical Checklist
This checklist turns federal jurisdiction and removal practice into phased tasks a lawyer can check off, each tied to its authority. It starts with the citizenship and claim analysis both sides need, then covers filing a complaint in federal court and structuring one to stay in state court. The removal phases run day by day through the 30-day window, the consent and forum-defendant gates, the filings, and the first week after removal. Separate phases cover moving for and opposing remand, including fee requests and post-removal amendments. A final phase handles a jurisdictional defect found late, including after verdict or on appeal. Red flags mark the errors that have cost parties judgments, stated through the Supreme Court's 2026 decisions.
Federal Deadline Calendaring and Recovery Checklist: A Practical Checklist
This checklist has two jobs: keeping federal deadlines from being missed, and recovering when one is. The first half covers office setup, case intake, computing each date under Rule 6, watching the docket, and handing off work when someone leaves. The second half runs from the first hour after discovery through sorting the deadline, filing the right motion, and notifying the client and the carrier. Each task names its governing authority, with notes and red flags drawn from decisions in which lawyers lost on these exact points. It is designed to be printed and used at a desk by lawyers, paralegals, docket clerks, and self-represented litigants.
Expert Disclosure and Daubert Challenge Checklist: A Practical Checklist
Expert practice fails in two places: the disclosure, which is mechanical and unforgiving, and the reliability challenge, which the December 2023 amendment to Rule 702 made materially easier to win. This checklist covers both, from selecting an expert whose qualifications match the specific opinion through preparing the report, taking and defending the deposition, and briefing or opposing a motion to exclude. It incorporates the amended rule's two changes: the proponent must demonstrate admissibility by a preponderance, and the opinion must reflect a reliable application of the methodology, which forecloses the once-standard argument that application questions go only to weight. Each phase is paired with the reason it matters and the governing rule or case.
Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence
This article explains why a genuine invoice, ledger, email, or system log can still be excluded at trial, and how each one gets in. It covers what hearsay is and is not, opposing party statements, the five elements of Rule 803(6), records prepared for litigation under Palmer v. Hoffman, and third-party data adopted into a company's files. It then turns to self-authentication under Rule 902(11), (13), and (14), the line between computer-stored and machine-generated records, and the unsettled treatment of AI output. Readers also get the 2024 changes to Rule 1006 and new Rule 107, the proposed changes to Rule 104, the summary judgment standard in Rule 56(c)(2), and the Confrontation Clause limits in criminal cases. Worked hypotheticals show how the analysis runs on real-looking exhibits.
Product Liability for Manufacturers, Distributors, and Sellers
Any business that makes, imports, distributes, or sells a physical product can be sued when that product hurts someone, and the claim usually does not require proof that anyone was careless. This article explains the three theories that carry product cases and the three defect categories courts recognize. It covers strict liability's origins in Greenman and section 402A, the manufacturing defect claim that is essentially self-proving, the design defect claim and the divide between the consumer expectations and risk-utility tests, and the failure-to-warn claim that generates most modern litigation. It then works through the parallel negligence and warranty theories, why the warranty claim survives when the tort claim is barred, and the disclaimers and limitations that do and do not work under the Uniform Commercial Code and the Magnuson-Moss Warranty Act. A long section covers the defenses that actually decide cases: federal preemption after Riegel and Wyeth, the state of the art and compliance defenses, misuse and alteration, comparative fault, the learned intermediary and sophisticated user doctrines, statutes of repose, and the sealed container statutes that protect innocent retailers. It closes with compliance and recall obligations, insurance, contractual risk allocation up and down the supply chain, a worked example, checklists, an FAQ, and related reading.
Remote Deposition Checklist: A Practical Checklist
This checklist sets out every task for a remote video deposition in federal civil litigation, for both the examining lawyer and the defending lawyer, in the order the tasks arise. Its phases cover the decision to proceed remotely and the authority for it, the written protocol, the notice or subpoena, the officer and vendors, exhibit preparation, witness preparation, the technology rehearsal, the opening record, conduct during the examination, disputes and suspected coaching, closing the record and post-deposition tasks, and witnesses located abroad. Each item names the governing rule or case and adds a short practical note where one helps. Red-flag boxes mark the problems that most often damage a remote record. A deadlines table and a section on common failure points, built around a short worked example, close the checklist.
Filing an Anti-SLAPP Motion: A Practical Guide
An anti-SLAPP motion is a powerful and unforgiving procedural device: filed correctly it ends a case in ninety days with a mandatory fee award, and filed carelessly it educates the plaintiff, generates an adverse ruling, and in some jurisdictions exposes the movant to the plaintiff's fees. The two-step analysis is deceptively simple and the failures cluster in the first step, where the question is not whether speech was involved but whether the protected activity supplies the elements of the claim. This guide runs the motion from the intake evaluation through the evidentiary record, the opposition, the hearing, the fee application, and the appeal, with attention to the deadline, the discovery stay, and the exemptions that defeat otherwise strong motions. It also covers the forum questions—removal, choice of law, and the federal circuit split—that must be resolved before anything is filed.
Default and Default Judgment in Federal Court: Rules 55 and 60 and the Cost of Ignoring a Lawsuit
This article explains how a federal lawsuit turns into a default judgment, what that judgment can and cannot do, and how a defendant who missed the deadline can get out from under it. It walks through the two-step structure of Rule 55, the answer deadlines that trigger default, and the rule that a default admits well-pleaded facts but not damages or conclusions of law. It then covers the checks courts apply before entering judgment, including jurisdiction, service, the Servicemembers Civil Relief Act affidavit, the Eitel factors, Rule 54(c), and the special regimes for foreign states and the United States. The second half covers relief: the good-cause standard for setting aside an entry of default, the Rule 60(b) grounds for vacating a default judgment, the Supreme Court's decisions in Pioneer, Peralta, Espinosa, and Kemp, and the circuit tests built on them. An extended worked example, common mistakes, an FAQ, and takeaways for plaintiffs and defendants close the article.