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.
Summary Judgment Motion Checklist: A Practical Checklist
Summary judgment is decided on a record and on compliance with a local rule, and most motions are lost on the second of those. This checklist covers the whole sequence: deciding whether to move at all, building the record during discovery, drafting the statement of undisputed facts that carries the motion, handling evidence and objections under the post-2010 framework, and preserving the ruling for appeal. It gives separate phases to the moving and opposing sides, because the failure modes differ, and it flags the two Supreme Court decisions that determine what survives a denial. Used during discovery rather than after it, the checklist doubles as a plan for the evidence the motion will need.
Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination
On December 1, 2023, Federal Rule of Evidence 702 was amended to correct what the Advisory Committee described as widespread misapplication by courts. Many decisions had held that questions about an expert's application of a methodology go to weight rather than admissibility, effectively surrendering the gatekeeping role the Supreme Court assigned in Daubert. The amended rule makes two things explicit: the proponent must demonstrate by a preponderance of the evidence that each admissibility requirement is met, and the expert's opinion must reflect a reliable application of the methodology to the facts of the case. This article explains what changed and what did not, works through the Daubert trilogy and the reliability factors courts actually use, and covers the disclosure machinery of Rule 26(a)(2) including the difference between retained and non-retained experts and the work product protections added in 2010. It addresses the practicalities that decide expert fights: report drafting, deposition strategy, motions to exclude and their timing relative to summary judgment, the special problems of damages experts and apportionment, and cross-examination technique. It closes with checklists, a worked example, an FAQ, and related reading.
Understanding Equitable Defenses—A Comprehensive Guide to Laches, Acquiescence, Waiver, and Equitable Estoppel
Equitable defenses can defeat or limit an otherwise valid legal claim not by disputing the merits but by pointing to the claimant's own delay, conduct, or representations. This article defines and distinguishes the four core equitable defenses—laches (unreasonable delay plus prejudice), acquiescence (active conduct signaling a claim will not be pursued), waiver (intentional relinquishment of a known right), and equitable estoppel (misleading conduct plus detrimental reliance)—and explains how each differs from a statute of limitations. It gives particular attention to the sharp curtailment of laches as a damages bar after Petrella v. MGM (2014) and SCA Hygiene v. First Quality (2017), and to where laches still does real work—above all in trademark, where the Lanham Act has no limitations period and doctrines like progressive encroachment and inevitable confusion shape the outcome. The article also treats the related unclean-hands and assignor-estoppel doctrines and the practical mechanics of pleading equitable defenses under Federal Rule of Civil Procedure 8(c). Worked hypotheticals spanning patent, trademark, copyright, contract, insurance, corporate, and real-property practice illustrate each doctrine for judges, practitioners, and non-lawyers alike.
Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts
This toolkit gives litigators and records teams working papers they can copy and adapt. It includes certifications under Rule 902(11), (12), (13), and (14), a combined notice of intent, a custodian request letter, a stipulation, and requests for admission. It also has foundation scripts, a hearsay response chart, a custodian deposition outline, and a technical questionnaire for system data. For summaries, it provides a Rule 1006 chart template, a preparer's declaration, and a Rule 107 legend. Each item states its purpose, its owner, and its timing, followed by drafting notes tied to authority.
Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations
This toolkit contains the working papers for preparing a deposition witness, ready to copy and adapt. It includes a four-session agenda, a plain-English witness instruction sheet, a document binder protocol with a review log, a mock examination outline, an Upjohn script and file note, joint-representation language, and letters to former employees. It also has a word-choice decision matrix, a preparation-question response matrix, Rule 612 scripts, a break-rule worksheet, a remote stipulation, a day-of card, and an errata worksheet. Each paper states its purpose, owner, and timing, and drafting notes tie the language to authority. Bracketed items need your facts, and your forum's rules may require changes.
Settlement Negotiation Toolkit: Case Valuation Worksheets, Concession Plans, and Offer Letters
This toolkit collects thirteen working templates for the negotiation phase of a civil case, from the first valuation through the term sheet signed at mediation. It includes a case valuation worksheet, a decision tree template, a BATNA and reservation price worksheet, an interest-mapping interview guide, a settlement authority memo, and a concession plan. It also provides an opening demand letter, a response to a lowball offer, a bracket proposal script, a mediator's proposal decision memo and response, a Rule 68 offer of judgment, scripts for answering common hardball tactics, and a negotiation term sheet. Each template states its purpose, owner, and timing, uses bracketed placeholders, and is followed by drafting commentary tied to the governing rules and cases. A running example, a patent dispute between a medical device maker and an accused infringer, shows how the templates fit together.
Trial and Post-Trial Toolkit: From Pretrial Order to Judgment
A trial is won or lost in the three weeks before it starts and preserved or forfeited in the four weeks after it ends. This toolkit covers both windows and the days in between. It begins with the final pretrial conference and the pretrial order that supersedes the pleadings, then works through in limine practice, jury selection, the mechanics of putting on and attacking proof, and the running obligation to preserve error that determines whether anything that happens at trial can be reviewed. The post-trial stages cover the motions that must be filed within twenty-eight days, the stay and bond mechanics that keep a judgment from being executed while it is challenged, cost and fee applications with their own short deadlines, and the notice of appeal whose timing is jurisdictional and unforgiving.
Recovering an Inadvertently Produced Privileged Document: A Practical Guide
This guide walks both sides of a clawback dispute through what to do, in order, from the minute a privileged document is found in the wrong hands. The producing side gets a first-hours sequence, who to notify, what the notice must say, how to run the follow-up sweep, and how to build the record for a Rule 502(b) fight. The receiving side gets the rules on stopping, notifying, sequestering, retrieving, and contesting a claim without risking sanctions or disqualification. It also covers presenting the document under seal, motions, deposition scripts, rolling privilege review, costs and trade-offs, and the mistakes that lose privilege in reported cases. Two worked examples and a timing table make it usable under pressure.
Rule 502 and Inadvertent Production: Waiver, Clawback Agreements, and Why Every Case Needs a 502(d) Order
This article explains what happens when privileged material slips out in discovery and how Federal Rule of Evidence 502 decides whether the privilege survives. It traces the law from the strict-waiver era through the 2008 rule, reads the leading cases closely, and sets out the three elements of Rule 502(b) with real numbers from real productions. It explains why a Rule 502(d) order is usually the best protection available, where it still fails, and why a clawback agreement alone binds only the people who signed it. It covers the receiving lawyer's duties under Rule 26(b)(5)(B) and Model Rule 4.4(b), the unsettled splits among courts, and how technology-assisted and generative AI review fit into the reasonable-steps analysis. Two worked examples show how the rules play out.
Post-Trial Toolkit: Rule 50 Renewals, New Trial Briefs, and Remittitur Analyses
This toolkit collects the working documents of federal post-trial practice, each introduced by its purpose, its owner, and when to use it, and each followed by drafting notes tied to the controlling rules and decisions. It starts with a post-verdict decision memo, a deadline calendar keyed to the entry of judgment, a written Rule 50(a) motion skeleton, and the preservation map that decides what a renewed motion may say. The briefing templates cover the notice of a combined Rule 50(b) and Rule 59 motion, a renewed JMOL memorandum with model standard language, a five-part module for each new trial ground, and the declarations that must be filed with the motion. The damages templates include a remittitur worksheet worked through for an $8.3 million trade secret verdict and a two-track punitive damages analysis. Later templates give the verdict winner an opposition outline, supply proposed orders with alternative paragraphs and remittitur election terms, frame the plaintiff's election, and package the Rule 59(e), Rule 60(b), bond, and notice of appeal filings. It closes with common drafting mistakes, an FAQ, and practical takeaways.
Getting Into or Staying Out of Federal Court: A Practical Guide to Jurisdiction and Removal
This guide walks plaintiffs and defendants through forum decisions in the order they arise, from choosing a court through fixing a defect after judgment. Plaintiffs get practical guidance on pleading into federal court, and on keeping a case in state court with tools that hold up after Royal Canin and Hain Celestial. Defendants get a day-by-day plan for the 30-day removal window, the consent and forum-defendant checks, and the filings that complete removal. Remand practice is covered from both sides, including what to do about snap removal, when to ask for fees, and when a post-removal amendment ends the federal case. A separate section explains what to do when a jurisdictional defect surfaces late. Worked hypotheticals, a trade-off table, sample language, and a list of common mistakes are included.
Settlement Negotiation Preparation Checklist: A Practical Checklist
This checklist organizes the preparation for a litigation settlement negotiation into twelve phases, from deciding when to negotiate through signing a term sheet. Each item is a concrete task, tied where possible to the governing rule, statute, or case, with short notes on how to carry it out. The phases cover case assessment, valuation inputs such as fee-shifting, interest, collectability, taxes, and liens, client interests and authority, the reservation price and target, procedural leverage such as Rule 68 offers, the choice of format and neutral, the opening and concession plan, the mediation statement, client preparation, conduct on the day, and closing. Red-flag boxes mark the problems that most often derail a deal, and a deadlines table collects the time limits that matter. A short worked example and a list of common failure points close the checklist.