Compendium

Litigation Strategies — Cross-Cutting Comparison

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Litigation Strategies — Cross-Cutting Comparison

This note compares the recurring strategic dichotomies that shape how civil litigation is actually conducted in US courts — cost-shifting regimes, discovery posture, motion practice intensity, settlement timing, forum selection, aggregation choices, factfinder selection, expert reliance, enforcement of judgment, and appellate preservation. Each section frames the dichotomy, lays out the trade-offs, names the canonical doctrines and cases that govern it, and gives the practical rule for when a litigator picks one over the other. Decision tree at the bottom.

The frame: a complex civil case has roughly ten strategic forks. Few firms are equally good at every branch; most have a “house style” (motion-heavy and surgical vs discovery-heavy and aggressive), and the smart move is to know your style, know the other side’s, and pick forks that pull them onto unfamiliar ground.

See also

1. The ten strategic axes

AxisPole APole BDriven by
Cost-shiftingAmerican ruleEnglish rule / fee-shifting statuteForum, claim, contract
Discovery postureAggressive / dragnetSurgical / targetedResources, asymmetry, sanctions risk
Motion practiceMotion-heavy (12(b)(6), MSJ, Daubert, in limine)Trial-prep heavy (skip motions, go to jury)Strength of legal vs factual theory
Settlement timingEarly ADR / pre-suit mediationEve of trial / “courthouse steps”Information asymmetry, leverage, client risk tolerance
ForumFederalState; transfer, removal, remandSMJ, jury pool, judge quality, choice-of-law
AggregationClass action (Rule 23)MDL (28 U.S.C. §1407)Common-question density, geography, settlement architecture
AggregationIndividual / mass actionBellwether bench/jury trialsPlaintiff bar coordination, defendant exposure strategy
FactfinderJuryBenchSympathy, complexity, judge identity
Expert relianceHeavy expert (battle of experts)Light expert / fact-drivenDaubert burden, jury credibility
EnforcementDomestic executionForeign judgment recognition; injunctive reliefDefendant assets, location
PreservationObject-everything appellate postureCherry-pick preserved errorsRisk of “raise it or waive it”; FRCP 46; FRE 103

The choices interact. A motion-heavy strategy presupposes a strong legal theory; an aggressive-discovery strategy presupposes an information-poor record; an early-ADR posture presupposes both sides being commercially rational. Mismatches between strategy and case profile are the dominant cause of preventable losses.

2. Cost-shifting — American rule vs English rule vs fee-shifting statutes

American rule (default)

Each side pays its own attorneys’ fees regardless of outcome. Confirmed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), which struck down judge-made fee-shifting absent statutory authority.

  • Mechanism: No fee award at judgment; costs (filing fees, transcripts, deposition costs, witness fees) are taxed under FRCP 54(d), but attorneys’ fees are not “costs” absent statute.
  • Why it persists: Encourages access to courts for plaintiffs with strong claims who couldn’t afford to risk fee shifting; rewards risk-bearing by contingency-fee plaintiffs’ firms.
  • Consequence: Defendant pays its own fees even on total victory. Creates settlement pressure independent of merits — “nuisance value” settlements where defense cost exceeds payment.

English rule (loser pays)

Standard in UK, most of Europe, much of the Commonwealth, and used in arbitration administered under English-style rules. Not the default in the US.

  • Encourages weeding of weak cases; discourages access for impecunious plaintiffs (mitigated by “after-the-event” insurance).
  • Reciprocal fee-shifting clauses in commercial contracts effectively impose the English rule by contract — common in M&A, commercial real estate, and franchise agreements.

Fee-shifting statutes (American “with exceptions”)

The American rule has been overridden by statute in over 200 federal contexts and many state ones:

  • 42 U.S.C. §1988 — civil rights claims (§1983, §1981, Title VI, Title IX, FHA, ADA Title II, RLUIPA). One-way fee-shifting: prevailing plaintiff routinely recovers; prevailing defendant only on showing claim “frivolous, unreasonable, or without foundation” (Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)).
  • Title VII, ADEA, FLSA, FMLA — one-way fee-shifting for prevailing plaintiff.
  • Lanham Act §35 — fee-shifting in “exceptional cases” (Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014) lowered the bar).
  • Patent Act §285 — “exceptional cases” parallel; same Octane Fitness framework.
  • Sherman Act §4 — treble damages plus prevailing plaintiff fees.
  • Securities — PSLRA §21D(c) — mandatory fee-shifting against a party whose Rule 11(b) violation is “substantial.”
  • EAJA — 28 U.S.C. §2412 — fees against the federal government when position was not “substantially justified.”
  • State consumer protection statutes — most have prevailing-plaintiff fee provisions (California CLRA, Magnuson-Moss).

Strategic implications

  • Plaintiff: Pick a claim with a fee-shifting statute attached when colorable. A pure breach-of-contract claim leaves your client with no fee recovery; a UCL §17200 / CLRA / Magnuson-Moss overlay can shift fees on the same operative facts.
  • Defendant: Watch the catalyst doctrine and Buckhannon Board & Care Home v. West Virginia DHHR, 532 U.S. 598 (2001) — voluntary cessation post-suit is not “prevailing party” status. Settling with no fee carve-out can mean no fee award.
  • Both sides: Reciprocal fee-shifting in the underlying contract is the simplest way to align incentives — and the most overlooked drafting point.

When to use: pure American rule is the default. Switch to a fee-shifting analysis the moment you identify a Civil Rights Act, securities, antitrust, patent/Lanham, or qualifying state statute claim. Plead it early to preserve.

3. Discovery posture — aggressive dragnet vs surgical

Aggressive / dragnet

  • Broad Rule 34 document requests; broad Rule 33 interrogatories (limited to 25 per side absent leave); 30(b)(6) deposition notices listing dozens of topics.
  • Custodian-based ESI collections covering many years; metadata-rich productions; aggressive privilege challenges.
  • Subpoenas to third parties (banks, vendors, regulators) under Rule 45.

When it works: information asymmetry favors the defendant (plaintiff knows little; needs discovery to plead with specificity); the case turns on the defendant’s intent / pattern / practice (employment, antitrust, securities fraud, RICO). Class certification with predominance issues benefits from broad discovery to show common questions.

Risks: cost (ESI cost can dwarf damages); sanctions under FRCP 26(g) for unreasonable requests; proportionality pushback under the 2015 amendments to FRCP 26(b)(1) requiring discovery to be “proportional to the needs of the case.” Apple Inc. v. Samsung Electronics Co., 881 F. Supp. 2d 1132 (N.D. Cal. 2012) — multimillion-dollar sanctions for spoliation.

Surgical / targeted

  • Narrow, well-pleaded interrogatories aimed at admissions; targeted document requests at known custodians; tactical 30(b)(6) on specific topics.
  • Use third-party subpoenas to bypass defendant’s privilege gauntlet.
  • Lean on Rule 36 requests for admission to lock down undisputed facts.

When it works: simple contract or tort case; plaintiff has the bulk of the relevant facts (slip-and-fall, breach with documents in plaintiff’s possession); commercial dispute where speed beats omniscience.

Risks: missing the “smoking gun” you didn’t know to ask for; cannot survive summary judgment with thin record.

The 2015 proportionality pivot

The 2015 FRCP amendments folded proportionality into the scope rule itself: discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” This shifted leverage to whichever side had less information and gave magistrates much more authority to compress dragnet discovery.

Strategic rule

Begin with the dragnet outline but execute surgically. File a comprehensive 26(f) plan and Rule 34 requests on Day 1 — preserve the right — then dial back to what you actually need. Aggressive discovery is most often a signaling tool: shows the other side you’ll outwork them, raises their cost-of-litigating, and softens them toward settlement.

4. Motion practice — motion-heavy vs trial-prep heavy

Motion-heavy

  • 12(b)(6) and 12(b) jurisdictional motions before answer.
  • Rule 12(c) judgment on the pleadings after answer.
  • Rule 56 summary judgment in stages (partial, total, cross-motions).
  • Daubert / FRE 702 motions to exclude expert testimony — the modern battlefield.
  • Motions in limine to wall off evidence pre-trial.
  • Rule 11 sanctions motions on weak filings; §1927 sanctions on opposing counsel.

When it works: legal theory is your strongest card; key cases are squarely in your favor; the record will be ambiguous on its face but legally one-sided when filtered. The post-Iqbal / Twombly pleading regime (Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009)) makes 12(b)(6) more valuable than it was for most of the 20th century. Plausibility, not notice, is the standard.

Risks: even successful motions consume 6-18 months and seven-figure fees. Repeated motion loss telegraphs weakness. Judges develop favorable / unfavorable lean — pick your battles.

Trial-prep heavy

  • Answer, brief 26(f) plan, drive straight to discovery and trial readiness.
  • Skip discretionary motions; preserve only essential ones.
  • Build jury demonstratives, prep witnesses, draft openings and verdict forms early.

When it works: facts are your strongest card; story is sympathetic; jury appeal beats doctrine. Plaintiffs’ personal-injury bar typically runs this playbook. Defendants run it when Daubert and MSJ are unwinnable and a sympathetic factual record is the best chance.

Daubert as the modern fulcrum

Under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and FRE 702 (amended 2023 to clarify the proponent bears the preponderance burden), the trial judge is the gatekeeper of expert admissibility. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) extended Daubert to non-scientific experts. General Electric Co. v. Joiner, 522 U.S. 136 (1997) gave the trial judge wide latitude.

The 2023 amendment to FRE 702 (effective December 1, 2023) clarified that the proponent must show by a preponderance that the testimony is “based on sufficient facts or data” and “reflects a reliable application” of methods. This raised the bar; many courts had been over-relying on “goes to the weight, not the admissibility.” Modern Daubert practice is the most case-dispositive motion in toxic tort, products liability, antitrust, and patent damages.

Strategic rule

Motion-heavy is correct when the law moves your way and trial-prep is correct when the facts and the witnesses move your way. The cardinal sin is filing motions you’ll lose to signal aggression — judges remember.

5. Settlement timing — early ADR vs eve of trial

Early ADR / pre-suit mediation

  • Pre-suit demand letter / Rule 408 mediation before complaint.
  • Court-annexed mediation early in case (Northern District of California ENE; many state programs).
  • JAMS / AAA mediation with retired federal judges; pre-suit insurance carrier negotiations.

When it works: both sides see a similar damages range, insurance limits are clear, reputational risk drives both. Commercial M&A indemnity disputes, employment terminations with known damages exposure, insurance subrogation.

Eve-of-trial / courthouse-steps

  • Full discovery complete; Daubert and MSJ rulings in hand; trial date 30 days out.
  • Information asymmetry collapses; insurance carriers must finalize reserves; both sides know expected verdict.

When it works: information asymmetry was the obstacle to early settlement. Each side overestimated its case. Discovery and motion rulings forced realism.

Modern frame: “phased” settlement

Many cases now settle in phases: liability waived in exchange for narrowed damages discovery, with a final price set after expert reports. The “high-low” agreement — agreed-upon floor and ceiling regardless of jury verdict — is increasingly common in catastrophic injury and securities cases where verdict variance is high.

Mediator selection

  • Retired federal judge (former S.D.N.Y., N.D. Cal., E.D. Tex.) — high authority, expensive (25K/day).
  • Subject-matter specialist mediator — patent (FRA / Daubert), employment (EEOC alumni), antitrust.
  • JAMS / AAA panels — large pool, neutral perceived.

Strategic rule

Settle as early as the information allows — but never on the first offer (signals weakness) and never when key motions are pending (settle after favorable rulings). The “second offer” is usually the meaningful one.

6. Forum selection — federal vs state, removal vs remand

Federal court

  • Article III judges, life tenure, FRCP uniformity, well-developed appellate review.
  • Jury pools draw from the entire federal district (broader, often more diverse than urban-only state pools).
  • More resources for complex litigation: special masters, magistrate management of discovery, MDL machinery.

State court

  • Often a much smaller jury pool (county-level), can favor either side depending on demographics.
  • State court judges may be elected — closer to local norms; predictability varies.
  • Pleading standards typically lower (no Twombly/Iqbal in most states); discovery rules often more permissive.

Forum manipulation

  • Removal (28 U.S.C. §1441) — defendant’s tool. Diversity removal (no in-state defendant under §1441(b)(2) “forum defendant rule”); federal-question removal (well-pleaded complaint rule of Mottley).
  • Forum selection by contract — Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013) — court should “almost always” enforce forum-selection clauses.
  • Forum non conveniens — Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) — public/private interest factors. Limited reach since Atlantic Marine.
  • Transfer — 28 U.S.C. §1404(a) (convenience) and §1406(a) (cure or waiver of defects).
  • Anti-suit injunctions — federal court can enjoin state court action only in narrow categories (Anti-Injunction Act, 28 U.S.C. §2283).

Mallory v. Norfolk Southern (2023)

Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023) revived consent-by-registration personal jurisdiction for corporations registered to do business in Pennsylvania. Sharply narrows the Daimler AG v. Bauman, 571 U.S. 117 (2014) general-jurisdiction restriction. Plaintiffs increasingly file in Pennsylvania state courts (and any other state with similar registration statutes) to capture out-of-state defendants on out-of-state claims.

Strategic rule

Plaintiff: file where you can — state court with sympathetic pool, fee-shifting statute, lower pleading bar. Defendant: remove fast (30-day clock under §1446(b)) and consider transfer under §1404. Both: forum is the most consequential pre-discovery move.

7. Aggregation — class action vs MDL vs individual

Class action (Rule 23)

  • Single litigation for all class members; binding by judgment or settlement.
  • Certification requires Rule 23(a) — numerosity, commonality, typicality, adequacy — plus one of Rule 23(b)(1), (b)(2), or (b)(3).
  • (b)(3) — money-damages classes; requires predominance + superiority. Comcast Corp. v. Behrend, 569 U.S. 27 (2013) — damages methodology must match liability theory.
  • (b)(2) — injunctive / declaratory; no opt-out. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) — sex discrimination class de-certified for lack of commonality.
  • CAFA (28 U.S.C. §1332(d)) gave federal courts jurisdiction over most class actions ≥$5M; defendants can remove almost any class action.

MDL (28 U.S.C. §1407)

  • Multidistrict litigation panel (JPML) consolidates related cases for pretrial purposes only; cases remand for trial absent settlement.
  • ~50% of pending federal civil docket by case count (mass torts dominate).
  • Modern megastructures: 3M earplugs (~330,000 cases), Roundup (~150,000), opioids, social media (Meta, TikTok), Camp Lejeune water contamination, Zantac, talc, PFAS.
  • Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) — MDL court cannot self-assign trial; cases return to transferor district.

Individual / mass action

  • Each plaintiff files separately; sometimes coordinated bellwether discovery.
  • “Mass action” under CAFA is 100+ plaintiffs jointly pleaded but not certified as class.
  • Common in personal injury, securities (post-Reform Act lead plaintiff structure), antitrust opt-outs.

Bellwether trials

  • Within an MDL, a small representative set is tried (often 6-12 cases). Outcomes inform global settlement value.
  • The bellwether mechanism replaced certification as the dominant aggregation tool for mass torts post-Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) (asbestos class settlement rejected).

Strategic rule

Plaintiff: class if certification likely (consumer protection statutes with statutory damages, securities fraud post-Halliburton II); MDL if cases will be many and geographically scattered; individual if damages are large and personalization helps. Defendant: oppose certification; if certified, settle. MDL is generally preferable to defendant over scattered class actions because of unified pretrial management.

8. Jury vs bench

Jury

  • Constitutional right preserved by the Seventh Amendment for “Suits at common law” exceeding 20 — never updated for inflation).
  • Demand must be made under FRCP 38(b) within 14 days of last pleading on the issue.
  • Pros (plaintiff usually): sympathy, narrative engagement, punitive damages, awe-inspiring verdicts (Roundup, Vioxx).
  • Pros (defendant in tech/IP/complex commercial): jurors confused by technical issues may default to status quo / “plaintiff has the burden.”

Bench

  • Equitable claims (injunctions, declaratory relief, equitable subrogation) — no jury right.
  • Some statutory schemes — patent (jury for damages, bench for injunctions); bankruptcy core proceedings (Stern v. Marshall, 564 U.S. 462 (2011)).
  • Maritime, Lanham Act, IRS tax cases (Tax Court, US Court of Federal Claims).

Jarkesy (2024)

SEC v. Jarkesy, 603 U.S. 109 (2024) held that the Seventh Amendment requires a jury trial for SEC civil penalty actions because they are “akin to common-law fraud.” Pulled a broad class of administrative enforcement proceedings into Article III. Pending applications: FTC consumer-protection actions, CFPB enforcement, occupational-licensing penalties.

Strategic rule

Plaintiff: jury, except in cases where the law is complex and the facts unsympathetic. Defendant: bench when available, but rarely available in core civil cases.

9. Expert reliance — heavy vs light

Heavy expert (battle of experts)

  • Multiple experts per side: liability, causation, damages, rebuttal.
  • Common in: patent infringement, antitrust, securities fraud (loss causation under Halliburton II), products liability, medical malpractice.
  • Daubert gatekeeping is the first battle; admissibility, not weight, decides cases.

Light expert / fact-driven

  • One or zero experts; rely on fact witnesses, documents, party admissions.
  • Common in: pure contract disputes, simple negligence, employment discrimination where the documentary record speaks.

Daubert mechanics

  • Reliability factors (the Daubert “flexible list”): testability/falsifiability, peer review, error rate, standards/controls, general acceptance.
  • Kumho Tire applied to non-scientific.
  • FRE 702 (Dec 2023 amendment) — proponent must show by preponderance that data is sufficient and methods reliably applied; weight-vs-admissibility presumption narrowed.
  • 2024-2026 trend: more aggressive gatekeeping in MDL contexts (Zantac, AFFF, social media).

Expert credibility risk

Expert witnesses are professional witnesses; defense and plaintiff bars cycle through known names; juries (and increasingly judges) recognize the “paid expert” archetype. Risk: hire a heavyweight, get hit with prior-testimony impeachment showing position-changing.

Strategic rule

Hire experts early; vet them through prior testimony in PACER and on Lexis Litigator before retention. Plan the Daubert fight from the day of retention. A successful Daubert motion can dispositively narrow or end a case.

10. Judgment enforcement strategy

Domestic execution

  • Writ of execution under state law; FRCP 69 incorporates state procedures.
  • Charging orders against LLC interests; garnishment of accounts and wages.
  • Judgment liens against real property; UCC liens against personal property.
  • 28 U.S.C. §3201-3308 (Federal Debt Collection Procedures Act) for government creditors.

Foreign / out-of-state recognition

  • Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA, 47 states).
  • 28 U.S.C. §1738 — Full Faith and Credit — sister state.
  • Hague Convention on Recognition of Foreign Judgments (2019) — limited adoption.

Injunctive relief

  • Continuing court oversight; contempt as enforcement.
  • eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) — four-factor permanent-injunction test (irreparable harm, inadequacy of money damages, balance of hardships, public interest).
  • Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) — preliminary injunction four-factor.

Asset tracing and offshore enforcement

  • Discovery in aid of execution under FRCP 69(a)(2) — broad post-judgment discovery.
  • Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958) — limits on extraterritorial document orders.
  • §1782 discovery for foreign proceedings (Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004); ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022) limited to “foreign or international tribunals,” excluding private arbitration).

Strategic rule

Plan enforcement from the pleading stage. A judgment against an undercapitalized LLC is worth nothing without a piercing theory, a personal guarantee, or attachable assets. Foreign defendants require choice-of-law and asset planning. Asking “what will I collect on this judgment” before you file is the most underused practice in modern litigation.

11. Appellate preservation

”Raise it or waive it”

  • FRCP 46 — objections must be made on the record; specific grounds stated.
  • FRE 103 — evidentiary objections must specify the ground; plain error standard otherwise.
  • Issues not preserved are reviewed only for plain error or not at all (depending on circuit and issue type).

Strategy

  • Make the record at every turn. File objections in writing where possible (motions in limine, response to JMOL).
  • Preserve constitutional objections separately and clearly (avoid burying in a footnote).
  • File Rule 50 (JMOL) before submission to jury and renew under Rule 50(b) post-verdict; failure to renew waives most sufficiency challenges.

Strategic rule

Brief preservation as you go — don’t wait for appeal. Track every adverse ruling, every excluded exhibit, every overruled objection. Maintain a “preservation chart” updated weekly.

12. How to choose — strategy by case archetype

Case archetype                         Likely strategy mix
-----------------------------------    -------------------------------------
Securities fraud class                 Federal forum; PSLRA-compliant pleading; class certification;
                                       *Daubert* on loss causation; heavy expert (event study);
                                       mediation eve of cert ruling
Mass tort / pharma / device            MDL aggregation; bellwether trials; *Daubert* gatekeeping;
                                       aggressive discovery; eve-of-bellwether settlement
Antitrust monopolization               Federal forum; Sherman §2; broad discovery; market-definition
                                       experts; *Daubert* central; appellate Rule of Reason posture
Patent infringement                    E.D. Tex. / D. Del. / W.D. Tex. forum jockeying;
                                       *Daubert* on damages (Georgia-Pacific); bench/jury split;
                                       § 285 fee-shifting if exceptional
Employment discrimination              State or federal; jury preferred plaintiff side;
                                       light expert; document-heavy; §1988 / Title VII fees;
                                       EEOC mediation early
Contract / commercial breach           Forum-selection clause governs; bench preferred for complex
                                       commercial; surgical discovery; eve-of-trial settlement;
                                       reciprocal fee-shifting from contract
Personal injury / negligence           State court plaintiff; jury; light expert except
                                       causation/damages; contingency fee structure;
                                       early mediation common
Civil rights §1983                     Federal forum; jury; light expert; one-way §1988
                                       fee-shifting; motion-heavy on qualified immunity
RICO                                   Federal; aggressive discovery; pattern + enterprise pleading
                                       per *H.J. Inc. v. Northwestern Bell*, 492 U.S. 229 (1989);
                                       heavy expert if predicate acts include fraud
Toxic tort / environmental             Federal MDL likely; *Daubert* on causation primary battle;
                                       state-court individual cases for sympathetic plaintiffs;
                                       CERCLA cost-recovery is bench (equitable)
Securities — SEC enforcement           Post-*Jarkesy* Article III for civil penalties;
                                       admin law judge for cease-and-desist
Trademark / Lanham                     Federal; jury for damages; bench for injunction;
                                       § 35 fee-shifting in "exceptional cases" (*Octane Fitness*)
M&A indemnity                          Delaware Chancery (bench); 30(b)(6) targeted;
                                       eve-of-trial settlement after expert reports
Family law / Hudson-style              State; bench typically; modest expert (custody evaluator);
                                       collaborative or court-annexed mediation first

13. Anti-patterns

  1. Filing 12(b)(6) on a case you intend to win on the merits at trial. You spend 6 months and seven figures briefing a motion you don’t need; the judge denies it; the defendant now knows your legal theory.

  2. Running an aggressive discovery dragnet when the record favors you. Discovery hands the other side ammunition. If your strong record is already in your client’s hands, file early MSJ and let the other side dig in vain.

  3. Mediating before motion rulings. Settlement leverage moves after a favorable MSJ denial or Daubert ruling. Settling before key motions usually leaves money on the table.

  4. Demanding jury in a complex commercial case. Sophisticated juries in commercial cases tend to default to the defendant (“show me the smoking gun”). Bench is often better for plaintiff in patent damages, antitrust, securities. Exception: punitive damages or sympathetic plaintiff narrative.

  5. Choosing forum based on convenience rather than law. The most expensive thing about litigation is changing jurisdictions mid-stream. Pick the forum at the pleading stage and pay attention to Atlantic Marine and Mallory.

  6. Forgetting fee-shifting analysis. A pure breach-of-contract complaint can usually be re-framed with a statutory overlay (state consumer-protection, Magnuson-Moss, RICO predicate) that imports one-way fee-shifting. Drafted into the original complaint, this re-frames the entire settlement leverage curve.

  7. Failing to preserve. A perfectly tried case with no preserved objections is unappealable. Track preservation in a real-time chart.

  8. Hiring an expert without prior-testimony vetting. A Daubert hit on prior inconsistent testimony can sink your case mid-trial.

  9. Settling without a fee carve-out. Buckhannon means voluntary cessation may not “prevailing party.” Spell it out.

  10. Aggregation mismatch. Class certification when commonality won’t hold; MDL when cases are too few; individual when defendant has limits-of-insurance and a global settlement is realistic.

14. Decision tree — picking the strategy stack

What kind of case?
├─ Statutory violation w/ fee-shift available
│    → Plead the fee-shifting statute as primary or parallel claim.
├─ Information asymmetry — plaintiff knows little
│    → Aggressive discovery; broad 26(f); reserve narrowing under proportionality.
├─ Information asymmetry — plaintiff has most facts
│    → Early MSJ; surgical discovery; minimize defendant's chance to find weakness.
├─ Strong legal theory; weak facts
│    → Motion-heavy: 12(b)(6) → MSJ → *Daubert* exclude opponent's experts.
├─ Strong facts; weak legal theory
│    → Trial-prep heavy; jury; sympathetic narrative; settle before judge can rule on motions.
├─ Complex technical case (patent, antitrust, securities)
│    → Heavy expert; *Daubert* fight central; consider bench for damages calculation.
├─ Mass injury, geographic spread
│    → MDL transfer petition; bellwether structure; coordinate with plaintiffs' steering committee.
├─ Mass consumer claim w/ statutory damages
│    → Rule 23(b)(3) certification; CAFA-compliant; defendant will remove.
├─ Single high-stakes claim, sophisticated parties
│    → Bench or forum-selection-clause arbitration; surgical discovery; eve-of-trial mediation.
├─ Defendant has assets in multiple jurisdictions
│    → Plan asset tracing + UFCMJRA + §1782 discovery from filing.
└─ Cross-border claim
     → Choice-of-forum; *Atlantic Marine*; Hague conventions on service and evidence;
       New York Convention on arbitration recognition.

15. The 2024-2026 frontier

  • Jarkesy (2024) reshaping administrative enforcement — Article III juries required for civil penalties analogous to common-law fraud. SEC, FTC, NLRB, CFPB pipelines reorganizing.
  • Mallory (2023) reviving consent-by-registration personal jurisdiction. Pennsylvania, Georgia, Texas registration statutes back in play.
  • FRE 702 (Dec 2023) raising the Daubert gatekeeping bar; reviving exclusion motions previously dismissed as “weight, not admissibility.”
  • AI-generated evidence — courts grappling with authentication of AI-generated or AI-modified evidence under FRE 901; People v. Mata (S.D.N.Y. 2023 — Avianca AI brief sanctions) signaled aggressive enforcement against AI hallucinations in filings; FRCP 11 implications continuing.
  • Third-party litigation funding (TPLF) — disclosure rules expanding; N.D. Cal. standing order requires disclosure; In re Valsartan, MDL practice diverging.
  • Class action waivers post-Concepcion — AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) and Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018) confirmed arbitration / class waiver enforceability; mass arbitration (10,000+ individual claims forcing AAA fees) is the plaintiffs’ response.
  • PFAS / environmental megacases — 3M, DuPont, Chemours, Tyco — multistate AG action plus MDL plus individual; novel valuation methods.
  • Generative-AI copyright — New York Times v. OpenAI, Authors Guild v. OpenAI, Andersen v. Stability AI, Getty v. Stability AI — class action mechanics meeting fair-use defense.

Adjacent

When to pick what — one paragraph

Litigation strategy is a sequence of forks, not a single choice. The cheapest narrowing: if there’s a fee-shifting statute, plead it; if information asymmetry favors you, file early MSJ and depose tight; if information asymmetry runs against you, dragnet then narrow; if facts are stronger than law, go trial-prep heavy and demand jury; if law is stronger than facts, go motion-heavy and prefer bench; if cases are many and scattered, MDL; if cases are many but homogeneous and small, class action; if cases are few and large, individual coordinated; mediate after motion rulings, not before; preserve every objection in writing as you go; plan enforcement before filing. The dominant cause of preventable losses is mismatching strategy to case profile — running a motion-heavy book on a sympathetic-facts case, or running a discovery dragnet when the record favors you. Know your style; know the other side’s; pick forks that pull them onto unfamiliar ground.

— end —

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