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.
Litigation Hold and Evidence Preservation Checklist: A Practical Checklist
The duty to preserve evidence attaches when litigation is reasonably anticipated, which is usually before anyone has filed anything and often before counsel is retained. This checklist covers the whole lifecycle: recognizing the trigger and documenting it, scoping custodians and systems, issuing a hold notice that people can actually act on, executing the technical suspensions that make the notice real, and maintaining and releasing the hold. It gives particular attention to the sources that cause most modern spoliation findings, including collaboration platforms with short default retention, ephemeral messaging, personal devices, departed employees whose laptops are reimaged on a thirty-day cycle, and third-party cloud data. Each phase is paired with the reason it matters and the authority behind it.
Expert Depositions: Taking Apart the Opinion, Protecting Your Own Expert, and Building the Daubert Record
An expert deposition is where a Daubert motion is won or lost, and where the trial cross-examination is either built or thrown away. This article explains the rules that govern expert discovery in federal court: the Rule 26(a)(2) report and summary requirements, the sequencing and rebuttal windows, the 2010 work product protection for drafts and attorney-expert communications and its three exceptions, consulting-expert immunity, who pays the expert's fee, supplementation, and the exclusion remedy of Rule 37(c)(1). It then works through the evidence rules the deposition is built around, including the December 2023 amendment to Rule 702, and the cases that define reliability, from Daubert, Joiner, and Kumho Tire to Sardis, Paoli, and Elcock, with the patent damages line from Uniloc through Exmark as the running example of the ipse dixit problem. The second half is technique: the goals of the taking lawyer, the funnel structure, bias and prior testimony, the learned-treatise setup, hypotheticals, closing the doors, and the mistakes that waste the day; then the defending lawyer's job, from preparation sessions and privilege to objections, instructions, errata, and supplementation. Reliance material subpoenas, fee disputes, remote depositions, dual-hat and formerly consulting experts, foreign experts, and the use of the transcript at trial and on summary judgment round it out, with worked examples from a patent royalty deposition and a copyright software expert defense.
Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash
A subpoena is the only discovery device that reaches someone who is not in the lawsuit, and that fact drives every rule that governs it. The person receiving it has no stake in the case, did not choose to be involved, and is entitled to protection from significant expense—which is why Rule 45 contains a compliance geography, a fourteen-day objection window, a mandatory duty on the issuing lawyer to avoid undue burden, and a sanctions provision that gets used. This article covers issuance and service, the place-of-compliance rules that trip up experienced practitioners, how to object and when objecting alone is enough, motions to quash and to compel and where they must be filed, cost-shifting, privilege assertions, and the special regimes for banks, health care providers, and electronic communications providers. It closes with practical guidance for both sides.
Rule 11 and Inherent-Power Sanctions: The Safe Harbor, Fee Awards, and Attorney Conduct
Sanctions practice is governed by four overlapping sources of authority that do different things, and conflating them is the most common reason sanctions motions fail. Rule 11 reaches papers filed with the court and carries a mandatory safe harbor that defeats most motions on procedure alone; Rule 26(g) and Rule 37 govern discovery, where Rule 11 does not apply; Section 1927 reaches attorneys who multiply proceedings vexatiously; and the court's inherent power reaches bad-faith conduct anywhere, subject to a causation limit the Supreme Court imposed in Goodyear. This article separates them, explains what a reasonable inquiry actually requires, walks through the safe harbor step by step, and covers the fee-award mechanics that determine what a sanction is worth. It closes with the fastest-growing category of sanctions in American courts: filings containing citations that do not exist.
Rule 26 Initial Disclosures and Discovery Planning: A Practical Checklist
Initial disclosures and the Rule 26(f) conference are the front end of federal discovery, and the cheapest place to either set a case up for success or sow the seeds of later sanctions. This checklist walks through preserving evidence, mapping the case to the elements, preparing and serving Rule 26(a)(1) initial disclosures, conferring under Rule 26(f), and building the written discovery plan the parties submit before the Rule 16 scheduling conference. It incorporates the December 1, 2025 amendments that push privilege-log method and timing to the outset, explains why an FRE 502(d) order belongs in every plan, and flags the proportionality and certification traps that catch the unwary. Use it alongside our discovery refresher and privilege-log checklist. It is general information, not legal advice; always check your court's local rules and standing orders.
Handling a Personal Injury Claim Without a Lawyer: A Practical Guide
Not every injury claim needs a lawyer, and not every claim can be handled without one. This guide draws the line honestly, then walks through the entire self-handled claim: what to do in the first week, how to open and document a claim with each insurer, how to obtain and read your own medical records, how to build a demand package that an adjuster can actually approve, how to negotiate, and how to close a claim safely with a release you understand. It explains the traps that cost self-represented claimants the most money—recorded statements, early releases, treatment gaps, unresolved liens, and missed deadlines—and gives concrete scripts and templates. It closes with the specific warning signs that mean you should stop and hire counsel today.
Digital Message Evidence Toolkit: Collection Protocols, Authentication Declarations, and Rule 902 Certifications
This toolkit collects the working papers for turning text messages, chats, and social media content into admissible evidence, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rules and cases. It begins with a foundation matrix that separates fidelity, transmission, and attribution for every key message, then supplies a messaging-specific preservation letter, a custodian interview script, an internal collection protocol with a chain of custody log, a production-format rider, and a stipulated forensic examination protocol for an opponent's device. The authentication templates include a split set of requests for admission, a recipient's declaration, a forensic examiner's declaration, certifications under Rules 902(11), 902(13), and 902(14), a notice of intent to offer certified records, and an authenticity stipulation. The trial templates are a motion in limine to exclude unauthenticated messages with an opposition outline and a foundation examination script. A running example built on a contract modification agreed by text and WhatsApp ties the forms together, and a deadline tracker closes the toolkit.
Federal Civil Litigation Toolkit: A Roadmap and Resource Guide
This toolkit is a high-level roadmap through a federal civil lawsuit from first client call to appeal, designed for litigators, in-house counsel, and small-business defendants who need to understand the whole arc and where each task fits. It walks each phase—case evaluation, pre-suit demand, pleadings and filings, service of process, discovery, motions, trial, post-trial, and appeal—and at every step links to detailed mclaw.io checklists and articles plus the governing Federal Rules and the research tools (PACER, CourtListener, uscourts.gov) practitioners actually use. It is a navigation guide to the process and its resources, not a substitute for jurisdiction-specific advice; local rules and standing orders vary by court and judge. Use it to orient a new matter, to brief a client on what is coming, or to find the right deeper resource at the moment a particular task lands on the calendar.
The Art of Defending Depositions in Federal Court: A Comprehensive Guide
Defending a deposition in federal court is one of the most consequential and least understood skills in civil litigation, because harmful testimony can decide a case on summary judgment or in settlement long before trial. This comprehensive guide explains the defending attorney's role from the witness preparation session through the errata sheet, with close attention to the ethical line between legitimate preparation and improper coaching. It analyzes the objection regime of Federal Rule of Civil Procedure 30(c)(2)—objections noted on the record while examination proceeds, the distinction between form and substance, and the prohibition on speaking and suggestive objections under Hall v. Clifton Precision. It covers the three narrow grounds for instructing a witness not to answer, the contested question of whether counsel may confer with a witness during questioning, the special burdens of defending a Rule 30(b)(6) corporate witness, an expert, or a high-level executive, the Fifth Amendment in civil depositions, the circuit split over substantive errata corrections, the mechanics of terminating or limiting an abusive deposition under Rule 30(d)(3), and the procedural skirmishes that precede the testimony—short-notice depositions, second depositions, Rule 29 stipulations, and the "no knowledge" witness. Worked dialogue examples illustrate each principle, and the article closes with a defending-counsel checklist, an FAQ, and key takeaways for litigators and clients alike.
Class Action Defense Toolkit: From Complaint Through Settlement Approval
A class action is a different animal from an ordinary case because the certification decision, not the merits, usually determines the outcome. This toolkit is organized around that fact. It covers the first thirty days, including the removal analysis under the Class Action Fairness Act and the preservation and hold obligations that attach immediately, then the early motions that can end or reshape the case, the discovery strategy that builds a certification record rather than a merits record, and the certification fight itself, element by element, with attention to the damages model requirement that has decided many cases. Later stages cover interlocutory appeal, the decision framework for settlement, and the approval process, which since the 2018 amendments requires the parties to give the court a real evidentiary basis rather than a stipulation.
Anti-SLAPP Statutes and Strategic Litigation Against Public Participation
An anti-SLAPP statute is an unusual piece of machinery: a procedural device that lets a defendant test the merits of a claim before discovery, shifts fees to the prevailing defendant as a matter of right, and in many states permits an immediate appeal from denial. It exists because a certain kind of lawsuit is filed to impose cost rather than to win, and ordinary procedure handles that badly. The statutes vary enormously—California's is expansive and heavily litigated, several states have adopted the Uniform Public Expression Protection Act, and a dozen states have nothing at all—which makes forum and choice of law unusually consequential. This article explains the two-step framework, the exemptions that swallow more than practitioners expect, the unresolved question of whether these statutes apply in federal court, and how to use one without triggering the fee award yourself.
Adding Parties to a Federal Lawsuit: Joinder, Intervention, Impleader, and Interpleader
Federal lawsuits rarely stay two-sided, and the rules that decide who else may be pulled in, who may push in, and who must be present are among the most consequential and least studied in civil procedure. This article explains each party-structuring device in the Federal Rules: joinder of claims under Rule 18, crossclaims and counterclaim joinder under Rule 13, permissive joinder and severance under Rules 20 and 21, required joinder under Rule 19, impleader under Rule 14, interpleader under Rule 22 and 28 U.S.C. section 1335, intervention under Rule 24, and substitution under Rule 25. It tells the stories behind the leading Supreme Court cases, from Provident Tradesmens and Tashire to Owen Equipment, Pimentel, Laroe Estates, Berger, and Cameron. It then lays the jurisdictional overlay on top: the section 1367(b) limits in diversity cases, the complete-diversity trap, post-removal joinder under section 1447(e), fraudulent joinder, personal jurisdiction and the 100-mile bulge, and the patent joinder statute. Open questions and circuit splits, practical implications for plaintiffs, defendants, and nonparties, an extended worked example built around a warehouse fire, common mistakes, an FAQ, and takeaways close the article.