Litigation Insights

Analysis and practical guides on litigation.

199 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.

LitigationFederal Practice

Filing or Defending a Declaratory Judgment Action: A Practical Guide

A declaratory action is a forum-selection decision disguised as a remedy, and the analysis that should precede filing is frequently skipped. This guide covers both sides. For the party considering filing: whether a controversy exists, whether federal jurisdiction is available through the hypothetical coercive action, whether the forum is actually better, and whether the anticipatory-filing exception will defeat the point. For the party defending: attacking the controversy, attacking jurisdiction, seeking discretionary dismissal under Wilton, invoking the anticipatory exception, and mooting the case with a covenant not to sue. It closes with demand letter drafting and the standstill agreement that avoids the race entirely.

Casey Scott McKayMarch 30, 202627 min read

LitigationFederal Practice

Declaratory Judgment Actions: Jurisdiction, Discretion, and the Race to the Courthouse

The Declaratory Judgment Act lets a party who expects to be sued sue first, and that single feature makes it a forum-selection instrument as much as a remedy. This article explains what it does and does not permit: the actual controversy requirement and how MedImmune loosened it, the jurisdictional problem created by the well-pleaded complaint rule for federal question cases, the broad discretion courts retain to decline declaratory jurisdiction even when it exists, and the interaction with the first-filed rule that makes anticipatory declaratory suits contested. It covers the recurring contexts — insurance coverage, patents, contract interpretation — and the drafting consequences for anyone considering a demand letter. It also explains why a covenant not to sue can moot the case and what that costs the party granting it. The practical thesis is that a declaratory action is an affirmative litigation decision, not a reflex response to a letter.

Casey Scott McKayMarch 29, 202627 min read

LitigationFederal Practice

Settlement Toolkit: Term Sheets, Releases, Offers of Judgment, and Enforcement

This toolkit collects the documents a settlement practice runs on: a valuation worksheet and authority confirmation that precede the negotiation, a term sheet complete enough to sign at nine in the evening, release language naming every releasing and released party, the dismissal order that solves the Kokkonen enforcement problem, a confession of judgment, confidentiality and non-disparagement clauses with the carve-outs that make them enforceable, a Rule 68 offer drafted so it is not construed against the offeror, a lien resolution worksheet, and a motion to enforce. Each is annotated with the failure it prevents. It includes a term sheet, a long-form settlement agreement with clause-by-clause notes, mutual and one-way release language, an offer of judgment, dismissal stipulations, and an enforcement motion outline. Each carries drafting notes on what the provision does and where it commonly fails. Adapt everything to the claims released, the governing law, and the court's practice on retaining jurisdiction.

Casey Scott McKayMarch 28, 202615 min read

LitigationFederal Practice

Settlement Agreement Checklist: A Practical Checklist

Settlement documentation fails in a small number of predictable ways: a release that does not cover what someone thought, a party who did not sign, a court with no power to enforce, and liens nobody resolved. This checklist prevents each. It runs from pre-mediation valuation and authority through the term sheet that must be signed before anyone leaves the room, then through the drafting decisions that determine whether the deal holds — release scope, every party by name, enforcement before dismissal, confidentiality that can be complied with, allocation, and liens — and closes with the items that must be done before the file is shut. It covers authority, scope of release, payment mechanics, confidentiality, enforcement, tax reporting, and dismissal papers. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayMarch 27, 20267 min read

LitigationFederal Practice

Negotiating and Documenting a Litigation Settlement: A Practical Guide

Settlement documentation is done in a hurry by people who want to stop working on the case, which is why it fails in predictable ways. This guide covers the whole sequence: preparing for the negotiation with a valuation and a list of structural issues, running the mediation, drafting a term sheet specific enough to be useful, and then the documentation that determines whether the deal actually holds — release scope, every releasing and released party, enforcement jurisdiction before dismissal, confidentiality that can be complied with, tax allocation, and lien resolution. It closes with the dismissal mechanics and what to do when a settlement is breached. A worked negotiation follows a term sheet through long-form documentation and closing. It also covers multi-defendant allocation, setoff, and contribution protection.

Casey Scott McKayMarch 26, 202628 min read

LitigationFederal Practice

Settlement Agreements, Releases, and Rule 68: Ending a Case on Terms That Hold

Most cases end by agreement, and the agreement is frequently drafted in a hurry by people who want to stop working on the case. This article covers what makes a settlement hold: the release language that determines what is actually resolved, the parties who must sign for the release to bind, the enforcement problem the Supreme Court identified in Kokkonen and how to solve it before dismissal, and the confidentiality and non-disparagement terms that generate most post-settlement disputes. It also explains Rule 68 offers of judgment — a provision more often misunderstood than used, whose cost-shifting consequence turns entirely on whether the underlying statute defines attorney fees as costs. It covers release scope, enforcement mechanics, the retention of jurisdiction problem, tax and reporting consequences, and the sharp edges of an offer of judgment. It closes with the drafting decisions that determine whether a settlement actually ends the dispute.

Casey Scott McKayMarch 25, 202627 min read

LitigationAppellate Practice

Interlocutory Review Toolkit: 1292(b) Certifications, Rule 54(b) Judgments, and Mandamus Petitions

This toolkit collects the documents interlocutory practice actually requires, each annotated with the failure it prevents. It includes an appealability triage sheet to run the day a ruling issues, a deadline tracker for the jurisdictional ten- and fourteen-day clocks, a certification motion drafted to ask a judge to agree the question is hard rather than that she erred, the proposed order language a court can adopt, petition outlines for permission and mandamus, a stipulated judgment that preserves the appeal it enables, stay and emergency motion structures, and a client memorandum that gives the odds honestly. Each template carries drafting notes on the specific findings a court must make and how to give it the language. Adapt everything to the circuit, whose practice on these vehicles varies. The mandamus petition template in particular should be used only where the order is genuinely usurpative.

Casey Scott McKayMarch 24, 202613 min read

LitigationAppellate Practice

Interlocutory Appeal Checklist: A Practical Checklist

Interlocutory review is governed by unforgiving deadlines and narrow exceptions, and most attempts fail before anyone reaches the merits. This checklist runs the analysis in the order it has to happen: identifying whether the ruling is appealable without permission, calendaring the ten- and fourteen-day deadlines the day the ruling issues, triaging whether the ruling justifies the effort, choosing among partial judgment, certification, Rule 23(f), mandamus, and restructuring, drafting each, and obtaining the stay without which the appeal may be pointless. Separate sections cover emergency relief, preservation, and the cost conversation with the client. It sequences the vehicle selection, the certification record, the petition, and the stay request. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayMarch 23, 20267 min read

LitigationAppellate Practice

Seeking an Interlocutory Appeal: A Practical Guide

Seeking review before final judgment is a procedural exercise with unforgiving deadlines and low success rates, and the decisions that matter are made in the week after the adverse ruling. This guide walks through that week and what follows: triaging whether the ruling is appealable at all, choosing among certification, partial judgment, Rule 23(f), mandamus, and restructuring the case, drafting the motion that persuades a district judge to certify without asking her to concede error, meeting the ten- and fourteen-day deadlines that end most attempts, obtaining a stay, and preserving the option where review is not available now. It covers the certification motion, the petition to the court of appeals, Rule 54(b) judgments, the collateral order doctrine, and mandamus practice. Worked examples show which orders draw review and which do not. It also explains how to preserve the issue when review is denied, which is the usual outcome.

Casey Scott McKayMarch 22, 202628 min read

LitigationAppellate Practice

Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment

American appellate practice is built on the final judgment rule, and everything in this article is an exception to it. Each exception is narrow, each is policed carefully, and litigants routinely mistake an adverse ruling for an appealable one. This article sets out every route to appellate review before final judgment: the statutory categories that are appealable as of right, the certification process under Section 1292(b) and what actually persuades a court to grant it, the collateral order doctrine and why the Supreme Court has repeatedly declined to extend it, Rule 54(b) partial judgments, the specialized class certification and immunity appeals, and mandamus — the remedy of last resort that is granted more often than its reputation suggests. It covers section 1292(b) certification, Rule 54(b) partial judgments, the collateral order doctrine, and mandamus, with an honest account of how rarely each succeeds. It closes with what to do when review is denied.

Casey Scott McKayMarch 21, 202628 min read

LitigationFederal Practice

Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions

This toolkit collects the documents that make confidentiality practice work: a protective order with the tier definitions and challenge procedure that actually get negotiated, a standalone Rule 502(d) order, designation standards that keep designations credible, the sampling letter that resolves over-designation without motion practice, and — the centerpiece — the document-by-document table and business declaration that separate a granted sealing motion from a denied one. It also includes the access log, undertaking form, redaction protocol, disposal certification, and an unsealing response outline. Each template is annotated with its purpose and the failure it prevents. Each template carries drafting notes on the difference between good cause and the public right of access. Adapt everything to the district's local rules, which vary considerably on sealing.

Casey Scott McKayMarch 20, 202615 min read

LitigationFederal Practice

Protective Order and Sealing Checklist: A Practical Checklist

Confidentiality practice fails in two predictable places: designations made without discipline, and sealing motions that assert protection rather than establishing it. This checklist runs both. It covers negotiating the protective order term by term, the designation standards that keep designations credible, an efficient challenge procedure, the Rule 502(d) order that clawback agreements cannot replace, and the document-by-document sealing motion that actually gets granted. Separate sections cover redaction, third-party material, trial, the access log, disposal, and what to do when someone moves to unseal years later.

Casey Scott McKayMarch 19, 20267 min read