TAG

Civil procedure

Court process, jurisdiction, motions, and discovery.

LIT-01 · 01

Demand Letters and Litigation Holds Before a Lawsuit Is Filed

8 MIN · LIT

One event usually creates both an opportunity and an obligation. This brief pairs the offensive document — the demand letter — with the defensive duty that the same facts switch on.

The duty to preserve attaches when litigation is reasonably anticipated, which is often earlier than the day counsel is retained or a complaint arrives.
Sending a demand letter puts the sender on notice too: it is strong evidence that the sender anticipated litigation from that date forward.
A hold notice is defensible when it identifies custodians, describes categories concretely, suspends auto-deletion, and is acknowledged and re-issued.

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LIT-02 · 02

Personal Jurisdiction and Venue: Where a Civil Case Can Be Heard

9 MIN · LIT

Forum is decided by three separate questions asked in order: power over the defendant, a proper district, and whether a contract clause has already answered both.

Personal jurisdiction and venue are different questions. A court can have power over a defendant and still sit in the wrong district.
General jurisdiction reaches a defendant on any claim only where it is essentially at home, per Daimler v. Bauman (2014) — normally incorporation and principal place of business.
Specific jurisdiction requires contacts with the forum and claims that arise out of or relate to them, a relationship the Court addressed in Ford Motor Co. (2021).

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LIT-03 · 03

Electronic Discovery: Preservation, Collection, Review, and Sanctions

8 MIN · LIT

Discovery of electronic evidence is where most civil litigation budgets are spent and where cases are quietly lost. This brief maps each stage to its cost driver and its sanctions exposure.

Rule 37(e), as amended in 2015, applies only when ESI that should have been preserved is lost and cannot be restored or replaced from another source.
Curative measures require a finding of prejudice; adverse-inference instructions, dismissal, or default require a finding of intent to deprive another party of the information.
Rule 26(b)(1) limits discovery to what is relevant and proportional, weighing six named factors including burden, resources, and importance to the issues.

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LIT-04 · 04

Summary Judgment: Standards, Evidence, and What the Motion Decides

8 MIN · LIT

Summary judgment is decided on a paper record built long before the motion is written. This brief sets out the Rule 56 standard, the burden sequence, and the evidence that survives the test.

Rule 56 asks whether a genuine dispute of material fact exists — not who has the better argument or the more credible witness.
The movant carries the initial burden; a party without the trial burden may satisfy it by showing an absence of proof.
Evidence need not be in admissible form at the motion stage, but it must be capable of admission at trial.

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LIT-05 · 05

Arbitration or Court? Comparing Procedure, Cost, Confidentiality, and Appeal

8 MIN · LIT

The forum for a commercial dispute is usually chosen years before the dispute, in a clause nobody negotiated. This brief compares arbitration and court on the terms that decide outcomes.

The Federal Arbitration Act, 9 U.S.C. §§ 1-16, makes written arbitration agreements enforceable and directs courts to compel arbitration and stay litigation.
Judicial review of an award is narrow: Section 10 lists grounds such as corruption, fraud, evident partiality, misconduct, and arbitrators exceeding their powers.
Arbitration is not automatically cheaper — parties pay the arbitrators and the administrator, costs a court does not charge.

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LIT-06 · 06

Temporary Restraining Orders and Preliminary Injunctions: Proving Urgency

9 MIN · LIT

Emergency injunctive relief is decided fast, on an incomplete record, and mostly on the quality of the sworn facts. This brief sets out what Rule 65 requires and where applications fail.

A temporary restraining order issued without notice expires within 14 days and may be extended once for good cause or by the adverse party's consent.
An ex parte application needs specific facts in an affidavit or verified complaint plus written certification of the efforts made to give notice.
The four factors are likelihood of success, likely irreparable harm, the balance of equities, and the public interest, assessed together.

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LIT-10 · 07

Removal and Remand: Moving a Case Between State and Federal Court

9 MIN · LIT

Removal is a mechanical process with unforgiving deadlines and a one-way appeal rule. This brief covers the grounds, the clocks, the consent requirement, and how a remand motion is framed.

A notice of removal must generally be filed within 30 days after the defendant receives the initial pleading, through service or otherwise.
The forum-defendant rule blocks removal based solely on diversity when a properly joined and served defendant is a citizen of the state where suit was brought.
A remand for lack of subject-matter jurisdiction may be ordered at any time before final judgment; other defects must be raised within 30 days.

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LIT-11 · 08

Settlement Agreements: Releases, Conditions, and Enforcement

9 MIN · LIT

Almost every civil case ends in a settlement, and almost every settlement dispute comes down to three questions: which claims, which parties, and whether unknown claims were included.

A release is defined by three variables — the claims covered, the people and entities released, and whether claims unknown at signing are included.
Federal courts generally cannot enforce a settlement after dismissal unless the order retains jurisdiction or incorporates the settlement terms.
Waivers of federal age-discrimination claims must meet statutory requirements including a consideration period and a seven-day revocation right.

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