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.
Personal Injury Claim Intake and Evaluation Checklist: A Practical Checklist
A personal injury case is won or lost in the first thirty days, usually on facts that are cheap to preserve and impossible to recreate. This checklist runs the intake and evaluation in the order the clock requires: conflicts and limitations first, then the liability and coverage investigation that determines whether the case is economically viable at all, then preservation, then the damages and lien picture that determines what the client will actually net. It includes explicit rejection criteria, a coverage map, a preservation letter inventory, and a valuation worksheet. It is written to be used by a lawyer at a first meeting or by a claimant organizing a claim alone.
Selecting and Drafting an Arbitration Clause
An arbitration clause is usually the last provision negotiated and the first one that matters when something goes wrong, and most of them are copied from a form that nobody selected for the deal at hand. This guide treats the choice as a real one. It sets out when arbitration is genuinely better than litigation and when it is not, then works through each drafting decision in the order it should be made: scope, seat, administrator and rules, the number and qualifications of arbitrators, discovery and motion practice, confidentiality, remedies, class waivers, consolidation across related contracts, interim and emergency relief, fee allocation, and appellate review. It closes with the drafting failures that produce satellite litigation before the merits are ever reached.
Remote Video Depositions: Logistics, Remote Exhibits, Objections, and the Off-Camera Coaching Problem
This article explains the law and practice of remote video depositions in federal civil litigation, from the authorization in Rule 30(b)(4) and the rule that a remote deposition takes place where the witness answers, through the officer, oath, and recording requirements of Rules 28 and 30. It covers how exhibits work when no one shares a table, how objections and instructions behave over a delayed audio feed, and how the seven-hour limit and the motion to terminate apply when the technology fails. The center of the article is the off-camera coaching problem: the case law on conferences between lawyer and witness from Hall v. Clifton Precision onward, the new channels that video creates for improper assistance, and the tools examiners and courts use to detect and sanction it. Later sections address witness exclusion under Rule 26(c) and the 2023 amendment to Evidence Rule 615, the use of remote testimony under Rules 32 and 43, and the special risks of examining a witness located abroad. An extended worked example, common mistakes, an FAQ, and practical takeaways close the article.
Deposition Conduct and Objection Checklist: A Practical Checklist
This checklist puts deposition conduct rules on one desk-ready list for the defending lawyer and the questioning lawyer. It starts with identifying the governing rules and the judge's procedures, then moves through preparation, the opening record, and question-by-question decisions on objecting and instructing. Separate phases cover breaks and conferences, remote sessions, witnesses who misbehave, unrepresented people, and the decision to suspend or call the court. The closing phases cover the follow-up letter, the motion to compel, sanctions requests, and review. Red-flag boxes mark the errors that most often produce waiver or fee awards. Quick-reference tables on waiver and short deadlines finish the list.
Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions
This toolkit collects the working papers a lawyer needs when a deposition goes wrong or may go wrong. It includes a rule-set worksheet and local-rule tracker, a stipulation clause bank that replaces "the usual stipulations," and objection and instruction language organized by forum and ground. It gives examiners scripts for challenging instructions, responding to coaching, and describing what a transcript cannot show. It also provides a remote conduct protocol, an obstruction log, a call-to-chambers script, a meet-and-confer letter, and outlines with proposed orders for a Rule 30(d)(3) motion, a Rule 37 motion to compel, a sanctions request, and an opposition. Every tool states its purpose, owner, and timing, with drafting notes tied to authority. A one-page handout for witnesses closes the set.
Multidistrict Litigation and Mass Torts: How Thousands of Cases Become One Proceeding
Multidistrict litigation now accounts for a majority of the federal civil docket, and almost none of what happens in it appears in the Federal Rules. This article explains the machinery: how the Judicial Panel decides whether to centralize, what a transfer judge can and cannot do, how leadership is appointed and paid, how plaintiff fact sheets and census registries replace ordinary discovery, how bellwether trials are selected and what they are actually for, and how global settlements are structured and administered. It covers the doctrinal limits established by Lexecon and Gelboim, the general causation gatekeeping that ends entire litigations, and the ethical constraints on aggregate settlement that bind every lawyer with a book of cases.
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.
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.
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.
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.
Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings
The answer is the defendant's first pleading, and the admissions, denials, and defenses in it shape discovery, summary judgment, and trial. This article explains how a federal answer works: the response deadlines under Rules 12(a) and 81(c), the three responses Rule 8(b) permits, the line between a denial and an affirmative defense, and the waiver rules of Rules 8(c) and 12(h) that make omissions expensive. It analyzes the circuit split over whether Twombly and Iqbal govern affirmative defenses, how courts treat boilerplate defenses and Rule 12(f) motions to strike, and the defenses intellectual property defendants most often forfeit. It then covers counterclaims, including the compulsory counterclaim bar, supplemental jurisdiction, and declaratory judgment and trademark cancellation counterclaims, and explains when either side can win on the pleadings under Rule 12(c). It closes with strategy for both sides, two worked examples, an FAQ, and practical takeaways.
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.