Delaware Corporate Law Update

Updates on Delaware Corporate Law by Evan O. Williford, Esq., Delaware Corporate Litigation Attorney.

Court of Chancery Posts Practitioner Guidelines

Last week the Court of Chancery posted a document on its website entitled “Guidelines to Help Lawyers Practicing in the Court of Chancery” (available here).  It is intended as a “practice aid” to “minimize disputes over process”.  The document is 18 pages single-spaced, and is required reading (and re-reading) for anyone who practices before the Court, either regularly or occasionally.  Up front the Guidelines state  that they are a practice guide only and are not intended to be “used as a sword” or even cited before the Court.  The Guidelines were announced by press release which itself has some interesting things to say (available here).  Sample forms available with and referenced by the Guide are available here.

The press release reveals that the Court is proposing a rule to eliminate the requirement that a compendium of unpublished cases be provided with submissions, in favor of an “encouragement” to provide only authorities that are crucial to determining the case.  In this age of Westlaw and LexisNexis, along with the number of unpublished Chancery decisions available on the internet, this previous requirement now seems antiquated and the proposed rule a welcome nod to present realities.

A selection of notable comments in the Guidelines:

  • PDAs, blackberries, and cell phones — These are to be turned off and placed in the vestibules outside each courtroom.  If needed for scheduling purposes they may be retrieved and used should the Court permit.
  • The Guidelines repeat the expectations that the Court has previously voiced many times for Delaware counsel, that while it understands that sometimes the division of labor is weighted heavily in favor of forwarding counsel, ultimately it is the “Delaware lawyer who is taking the positions set forth therein and making the representations to the Court,” and this role “does not alter the Delaware lawyer’s responsibility for the positions taken and the presentation of the case.”  Submitting a letter from co-counsel to the Court with a short cover letter is not permissible.
  • The Guidelines list requirements for transmittal letters accompanying courtesy copies of briefs.
  • Counsel calling chambers to seek  potential dates from the Court should only do so with all other counsel on the line or after obtaining authority from them, .  If  potential dates, counsel should relay all of them to the other parties and ensure that information has been shared fairly, even if that attorney is not available for one or more of the dates provided.
  • Except for motions to expedite, scheduling disputes should be resolved by motion, not letter.
  • The Court does not want a lengthy exchange of letters: after a response and possibly a reply letter it is  “time to schedule a conference.”
  • The Court strongly expressed its preference for limited expert discovery (i.e. materials provided to or relied upon by the expert), and that it “understands the degree of involvement counsel typically has in preparing expert reports”.
  • The Court prefers that defendants who wish to oppose a motion to amend on grounds that the amendment would be futile stipulate to the motion but reserve their right to challenge the pleading via answer or motion to dismiss.
  • A submission of fifteen pages or less should be submitted as a speaking motion; a submission of greater length should be a brief with tables of contents and authorities.
  • Discovery disputes — The Court will “not be inclined” to hear arguments — or even authorities — that had not previously been presented to the other side.  “If the argument or authority had been presented, perhaps the dispute would have been resolved.”

Among the forms listed is a lengthy sample scheduling order for a plenary action (available here). It stipulates that many dates not affecting the Court’s schedule may be amended by agreement of the parties, without Court approval.  As has become common before the Court, simultaneous opening and answering pre-trial briefs are contemplated.

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Delaware Corporate Law Update solely reflect the views of Evan Williford of The Williford Firm, LLP. Its purpose is to provide general information concerning Delaware law; no representation is made about the accuracy of any information contained herein, and it may or may not be updated to reflect subsequent relevant events. This website is not intended to provide legal advice. It does not form any attorney-client relationship and it is not a substitute for one.