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.
Recovering From a Missed Federal Court Deadline: A Practical Guide
This guide walks through the hours and days after you discover a federal deadline has passed. It starts with confirming the date, sorting the deadline into the right category, and preserving the evidence you will need. It then gives the route for each common miss, including late oppositions, unanswered complaints, scheduling order dates, late service, deemed admissions, post-judgment motions, notices of appeal, removal, and limitations periods, with sample language. Separate sections cover what to say to the client and the malpractice carrier, how to oppose a late filing if you are on the other side, and how a person without a lawyer should proceed. It closes with costs and trade-offs and the mistakes that most often turn a recoverable lapse into a final loss.
Post-Trial Motions in Federal Court: Judgment as a Matter of Law, New Trial, Remittitur, and Relief From Judgment
The 28 days after a federal jury verdict decide whether the verdict survives and what the appeal will look like. This article explains the four post-trial motions that do that work: judgment as a matter of law under Rule 50, a new trial under Rule 59(a), a motion to alter or amend under Rule 59(e), and relief from judgment under Rule 60(b). It walks through the Supreme Court cases that define each one (Reeves, Unitherm, Ortiz, Weisgram, Gasperini, Hetzel, Dimick, Banister, Kemp, Pioneer, Espinosa, Liljeberg, Gonzalez, and Buck), the remittitur and additur rules that the Seventh Amendment imposes, and the separate constitutional review of punitive damages under Gore, State Farm, and Exxon. It then covers the deadlines that cannot be extended, the way each motion starts or fails to start the appeal clock under Appellate Rule 4(a)(4), stays and bonds under Rule 62, interest, costs, fees, and the equitable relief that follows an intellectual property verdict. Two worked examples, a $4.2 million trademark verdict the defendant wants reduced and a plaintiff who lost on a bad instruction, show how the motions fit together, and the strategy sections address both the party attacking the verdict and the party defending it.
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.
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.
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.
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.
Apex Deposition Checklist: A Practical Checklist
This checklist turns apex deposition practice into phased, check-off tasks for the party seeking a senior executive's or official's deposition and for the party resisting it. It starts with classifying the forum, the burden rule, and the witness, then moves through building the record of personal involvement, using less intrusive discovery, conferring, and serving the notice or subpoena. The resisting side's phases cover same-day triage, the internal investigation, the executive's declaration, and the motion for protective order with a proposed order. Later phases cover the ruling, review by objection or mandamus, compliance with sequencing orders, executive preparation, and the limited deposition itself, plus a separate phase for high-ranking government officials. Red-flag boxes, a deadlines table, a short worked example involving a startup founder, and a list of common failure points close the checklist.
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.
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.
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.
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.
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.