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.
Evaluating and Assessing a Civil Lawsuit
A rigorous early case assessment is the single most valuable—and most underinvested—hour a litigator spends on a dispute. This article walks corporate counsel and outside litigators through the full arc of assessing a civil lawsuit, following a hypothetical defendant from the moment a dispute surfaces to judgment and appeal. It works methodically through the questions that actually decide whether a case is worth bringing or fighting: can the plaintiff prove every element of the claim under the governing burden of proof; is there personal jurisdiction and proper venue; has the statute of limitations run; what are liability and damages worth separately; and—the question lawyers forget until it is too late—can a judgment ever be collected. It then turns to the quantitative tools that turn judgment into a defensible number (decision trees and expected value), the fee arrangements and ethical rules (Model Rules 1.5 and 1.7) that govern who pays and on what terms, and the modern frontier of e-discovery, predictive analytics, and third-party litigation funding. The throughline: assessment is not about predicting outcomes but about shaping them.
Amendment Toolkit: Redlined Pleadings, Rule 16 Good Cause Showings, and Futility Oppositions
This toolkit collects working templates for every document in a federal amendment dispute, built around a running patent example. It includes a meet-and-confer letter requesting consent, a stipulation and proposed order to amend and modify the schedule, a notice of motion and memorandum outline for leave to amend, a redline exhibit protocol, a Rule 16(b)(4) good-cause declaration with a diligence chronology, a relation-back analysis worksheet, a futility opposition outline, a prejudice declaration, and a proposed order granting leave on conditions. Each template states its purpose, owner, and timing, uses bracketed placeholders, and is followed by drafting commentary tied to the governing rules and cases. The running example follows a sensor company that learns of a new accused product after the amendment deadline, and an accused infringer that wants to add inequitable conduct. Practitioners should adapt each template to local rules and the assigned judge's practices.
Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions
This toolkit collects the working papers of federal discovery enforcement, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rule or case. The requesting party's templates cover a deficiency chart, a deficiency letter, a meet-and-confer log with a confirming email, a Rule 37(a)(1) certification and attorney declaration, a joint discovery letter, a motion to compel with a memorandum outline, a proposed order with a warning paragraph, and a fee declaration. The responding party's templates cover a burden and proportionality declaration, an opposition outline, and a Rule 72(a) objection outline. A Rule 37(b) sanctions motion and a compliance and deadline tracker complete the set. A running example involving a brewery's dispute with its can supplier shows each template filled in.
Apex Deposition Toolkit: Protective Order Motions, Executive Declarations, and Alternative Discovery Proposals
This toolkit collects the working papers for an apex deposition dispute, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing authority. For the party seeking the deposition, it supplies an involvement map, interrogatories directed to the executive's role, a meet-and-confer proposal letter, an opposition built around a unique-knowledge evidence chart, and a time-limited examination outline. For the party resisting, it supplies a notice triage memo, an executive interview outline, an executive declaration, a motion for protective order, and an executive preparation module. Shared templates include an alternative discovery and sequencing stipulation, a deposition limitations order, and a Rule 72(a) objection outline, and a separate template addresses motions and mandamus petitions for high-ranking government officials. All templates use bracketed placeholders and follow one running example, a product liability case in which the plaintiff seeks to depose an appliance maker's chief executive.
Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts
This toolkit collects the working documents a trial team needs to turn deposition transcripts into evidence: fourteen annotated templates, each introduced by its purpose, owner, and timing and followed by drafting notes tied to the governing rules and cases. The errata templates cover a worksheet and statement of changes under Federal Rule of Civil Procedure 30(e) and a response letter and motion outline for challenging an opponent's errata. The designation templates cover a Rule 32 route chart, a package of declarations proving unavailability, a joint designation chart, an objection log that tracks waiver under Rule 32(d) and Rule 26(a)(3), a completeness statement for counter-designations, and a clip specification and quality-control log for video. The trial templates are scripts for impeachment with a prior inconsistent deposition answer under amended Federal Rule of Evidence 613(b), impeachment of a Rule 30(b)(6) designee who changed an answer by errata, rehabilitation and completion, proposed jury instructions, and record-making at trial. A final template builds a summary judgment citation table and a response to a sham affidavit, and the toolkit closes with an FAQ and practical takeaways.
Rule 37(c)(1) Preclusion of Undisclosed Evidence: A Practical Guide
Federal Rule of Civil Procedure 37(c)(1) is the rule that ended "trial by ambush." When a party fails to disclose information or a witness as required by Rule 26(a) or to supplement under Rule 26(e), it generally may not use that information or witness on a motion, at a hearing, or at trial—unless the failure was substantially justified or harmless. This guide explains, in plain language for litigators, business owners, and judges alike, how the rule works: the affirmative disclosure duties it enforces, its "self-executing" character, the two escape hatches and who bears the burden of proving them, and the multi-factor tests the federal circuits use—the Second Circuit's Patterson/Softel factors, the Fourth Circuit's Southern States framework, and the Tenth Circuit's Woodworker's Supply factors—to decide whether the harsh remedy of preclusion is warranted. It covers the special and high-stakes context of expert disclosures, the recurring question of whether a party may rely at trial on something it withheld in discovery, the procedural mechanics of invoking the rule, the menu of lesser sanctions, and a worked hypothetical, closing with practical takeaways for both sides and an FAQ.
Expert Deposition Preparation Checklist: A Practical Checklist
This checklist turns expert deposition practice into concrete tasks for both sides of the table, organized in the order the work happens. It begins with the steps both sides should take before reports are exchanged, including an expert stipulation, protective order provisions for expert access, and the separation of consulting and testifying roles. The taking-side phases cover auditing the report against Rule 26(a)(2)(B), collecting the expert's file by request and subpoena, settling the Rule 26(b)(4)(E) fee, researching the expert, building an outline organized by Rule 702 element, conducting the examination, and turning the transcript into motions. The defending-side phases cover preserving the file, responding to the notice and subpoena, preparation sessions built around the three Rule 26(b)(4)(C) exceptions, objections and instructions, errata, supplementation, and the Daubert hearing. Short sub-checklists address treating and hybrid witnesses, remote and foreign depositions, dual-hat experts, patent damages experts, and software experts, followed by red flags, an FAQ, and practical takeaways.
Section 1983 Complaint and Qualified Immunity Checklist: A Practical Checklist
This checklist runs a Section 1983 case from intake through the fee petition. It front-loads the two deadlines that destroy cases before anyone reaches the merits, the state notice of claim period and the body camera retention schedule, then works defendant selection, the pleading standards that a qualified immunity motion will test, the clearly established precedent search that should happen before filing, the Monell discovery plan that determines value, and the damages and fee proof that determines what the case is actually worth. Separate sections cover the defense sequence and the Heck bar analysis.
Bringing or Opposing a Motion to Compel Discovery: A Practical Guide
This guide takes a federal litigator step by step through bringing a motion to compel discovery and, separately, through opposing one. It begins with the decisions to make before writing anything: whether the dispute is worth a motion, who the target is, whether a prior order exists, what the local rules and the judge's individual practices require, and how the discovery schedule constrains timing. The requesting party's steps cover diagnosing each deficiency, writing the deficiency letter, running and recording the conference, choosing between a joint letter and a formal motion, drafting the papers and supporting declarations, asking for expenses under Rule 37(a)(5), and enforcing the resulting order. The responding party's steps cover triage, curing what can be cured before filing, building burden and proportionality evidence, cross-moving for a protective order, limiting fee exposure, and objecting to a magistrate judge's order under Rule 72(a). A section on nonparty motions under Rule 45, a timeline and effort table, an extended worked example, common mistakes, an FAQ, and practical takeaways complete the guide.
Post-Trial Motion Checklist: A Practical Checklist
Post-trial motions are won or lost on preservation and deadlines, and this checklist turns both into concrete actions. It runs in the order the work happens: preserving issues before the case goes to the jury, verdict day, entry of judgment and the calendar, choosing the motions, drafting the renewed JMOL and the new trial and remittitur motion, and using Rules 59(e), 52(b), and 60. Separate parts cover opposing the motions, the hearing and remittitur election, stays and bonds, costs, fees, and interest, and the notice of appeal. A part on intellectual property verdicts covers injunctions, enhancement, ongoing royalties, profits, and statutory damages. Each item carries a short note and the controlling rule or case, and the checklist closes with common mistakes, a table of key authorities, and a short FAQ.
Civil Rights Litigation Toolkit: Claims, Immunities, Damages, and Fees
This toolkit supplies the operative documents of civil rights practice. It contains the preservation letter that must go out within days, a notice of claim template, public records request language, a complaint framework with Monell allegations that survive dismissal, a qualified immunity opposition outline and a method for the clearly established precedent search, the Monell document demand set and Rule 30b6 topic list, a damages worksheet, and a Section 1988 fee petition framework with the Rule 68 analysis that should precede any rejection. It also includes a Heck decision tree and the PLRA screen for incarcerated plaintiffs.
Deposition Witness Preparation Checklist: A Practical Checklist
This checklist turns witness preparation into phased, check-off tasks for the lawyer defending a deposition and, in Phase 8, for a witness with no lawyer. Each item names its authority, so you can see why it is there. It runs from intake and forum research through the client-identity decision, the document file, the sessions, the mock examination, remote setup, the day itself, and the Rule 30(e) review period. Notes flag where courts split, and red flags mark the spots where preparation can turn into sanctions or lost privilege. It is built to be printed and kept on the desk.