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.
Investment Treaty Claim Checklist
Investor-state claims fail on jurisdiction far more often than on the merits, and the jurisdictional questions are all checkable before a notice is served. This checklist runs the pre-filing assessment in the order that matters, beginning with whether an award could ever be enforced against this particular state. It then covers the notice of dispute and the cooling-off period, the request for arbitration and arbitrator selection, and the evidentiary case that must be built from the claimant's own files. Separate sections cover the state's defence and bifurcation strategy, quantum from both sides, annulment and enforcement, and the preventive structuring and insurance that should have happened years earlier.
International Arbitration Toolkit: Clauses, Procedural Orders, and Enforcement Petitions
Working templates for an international commercial arbitration. It includes a model arbitration clause with clause-by-clause drafting notes, an arbitrator vetting questionnaire, a draft Procedural Order No. 1, a Redfern Schedule with model entries, a witness statement skeleton, an expert conferral direction, a cost submission outline, and a petition to confirm a Convention award in a United States district court. Each carries notes explaining what the language does and where it commonly fails. Adapt everything to the institution, the seat, and the governing law.
International Arbitration Checklist: A Practical Checklist
A working checklist for an international commercial arbitration from clause review through cross-border enforcement. It covers the pre-filing enforcement map, the request, tribunal constitution and arbitrator vetting, the first procedural conference, the memorial schedule, document production under the IBA framework, witness and expert evidence, hearing logistics, the award, and the parallel enforcement campaign. A separate section covers drafting the clause so none of the preventable problems arise. Each item is written so that a "no" tells you what to do next.
International Arbitration and the New York Convention: Enforcing Awards Across Borders
The New York Convention is the most successful private international law treaty ever written, and it is why cross-border commerce can be arbitrated at all. This article explains what the Convention actually requires, how Chapter 2 of the Federal Arbitration Act implements it, and why a foreign arbitral award is easier to enforce in the United States than a foreign court judgment. It covers the seven Article V defenses, the difference between the seat and the hearing venue, the divergent treatment of awards annulled where they were made, the Panama Convention, sovereign parties, and what ZF Automotive did to discovery in aid of foreign arbitration. It closes with the drafting decisions that determine whether an award will be enforceable.
False Claims Act Qui Tam Litigation: The Seal, Materiality, Scienter, and Government Intervention
The False Claims Act lets a private person sue on the government's behalf, collect a share of the recovery, and do it all under seal while the defendant knows nothing. This article explains the machinery that produces that result and the doctrines that decide the cases: the liability provisions and what a false claim actually is, the implied certification theory and the demanding materiality standard the Supreme Court adopted in Escobar, the subjective scienter question Schutte resolved, and the government's intervention and dismissal authority after Polansky. It covers the seal procedure and the disclosure statement, the jurisdictional bars that dispose of many cases before the merits, the pleading standard under Rule 9(b), and the damages and penalty structure that makes exposure so asymmetric. It closes with what a defense actually looks like and what a compliance program should do before any of this starts.
False Claims Act Compliance and Defense Checklist: A Practical Checklist
This checklist runs a False Claims Act matter from the first signal through resolution, and then backwards into the compliance work that should have preceded it. It opens with recognizing a sealed qui tam, the first thirty days, and a litigation hold that reaches the systems where evidence actually lives. It covers the internal investigation with its privilege discipline, the two records that decide most cases—the contemporaneous interpretation file that answers scienter and the agency payment history that answers materiality—and the jurisdictional bars researched during the seal. Later sections address the presentation to the government, the motion to dismiss, discovery in both directions, settlement and its collateral terms, parallel criminal exposure, and the retaliation claim that arrives publicly. Closing sections give the relator's checklist and a compliance program built around what actually gets litigated.
Enforcing a Court Order: A Practical Guide
This guide walks through enforcing a court order from the first sign of non-compliance to the sanctions hearing, in the order the work happens. It starts with reading your own order as a hostile reader would, because the specificity requirement defeats more contempt motions than any factual dispute, and moves to the compliance demand that resolves a large share of these situations for the cost of an afternoon. It then covers post-judgment discovery in aid of enforcement, deciding between clarification, enforcement, and contempt, identifying the individuals and nonparties who are actually bound, and building a record that satisfies the clear and convincing standard. Later steps address choosing the sanction you want, the hearing, defending a contempt motion, appeals and stays, and enforcing against a judgment-proof or foreign respondent. A closing step covers drafting the next order so this is easier.
Drafting and Litigating Arbitrability: A Practical Guide
A step-by-step guide to moving to compel arbitration, opposing such a motion, and drafting clauses so the fight does not happen. It covers the first-week assessment, the contract hierarchy question that Coinbase v. Suski put first, waiver risk under Morgan v. Sundance, building the formation record, briefing delegation, the stay-versus-dismissal decision, and interlocutory appeal strategy under Section 16. It includes worked scenarios with named parties, realistic budgets and timelines, a drafting section with model language, and the mistakes that decide these motions. Written for counsel on both sides and for in-house lawyers maintaining a clause library.
Discretionary Review Toolkit: Petition Structures, Conflict Charts, and Amicus Coordination
This toolkit supplies the documents behind a discretionary review petition. It opens with a conflict chart schema and a vehicle memorandum that together determine whether a petition should be filed and in which case, followed by a question-presented workshop with worked examples of weak and strong formulations. Petition and opposition templates set out the sections in the order the Court reads them, with the merits argument in its proper subordinate place. Amicus materials include a recruitment brief, a topic allocation grid, and a deadline tracker. En banc materials include a Rule 35 certificate, a side-by-side conflict table, and a narrowing petition for panel rehearing. The toolkit closes with an appendix index, a filing mechanics checklist, a master deadline calendar, and a client engagement memorandum recording the odds and the decision.
Designing a Consumer Arbitration Program That Survives Mass Filings: A Practical Guide
A step-by-step guide to building and operating a consumer or worker arbitration program that can absorb thousands of simultaneous filings without collapsing. It covers the threshold decision of whether to keep an arbitration clause at all, the clause architecture that courts have enforced, the operational capabilities that matter more than the drafting, the ninety-day response plan when filings arrive, the segmentation and resolution strategy, and the governance that keeps the program current. It includes worked scenarios with named parties, budgets, staffing, and the mistakes that turn a manageable event into a crisis. Separate sections address the employment and gig-worker variant, working with the process arbitrator, and a biennial tabletop exercise. The guiding principle throughout is to design for orderly volume rather than for deterrence.
Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal
Working templates and model language for declaratory judgment practice on both sides of the caption. It includes a declaratory complaint skeleton with controversy allegations, a covenant not to sue drafted to actually moot a case, a standstill agreement, a Wilton discretionary-dismissal brief outline, an anticipatory-filing timeline exhibit, a demand letter drafted to avoid triggering a declaratory filing, and a client decision memorandum. Each item carries drafting notes explaining what the language is doing and where it commonly fails. Adapt the language to the matter; do not use it unedited.
Declaratory Judgment Checklist: A Practical Checklist
A working checklist for deciding whether to file a declaratory judgment action, drafting one that survives, and defeating one filed against your client. It walks through the controversy analysis under MedImmune, the independent basis for federal jurisdiction, the discretionary factors courts apply under Wilton and Brillhart, and the anticipatory-filing exception to the first-filed rule. Separate sections cover the declaratory defendant's playbook, mootness by covenant not to sue, standstill agreements, and the mechanics that get overlooked. Use it before the filing decision, not after. Every item is phrased so that a "no" tells you what to do next.