Delaware Corporate Law Update

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

Chancery and Practitioners Give Tips On Practice Before Court

On May 22, the annual Recent Developments in Delaware Corporate and Alternative Entity Law seminar was held.  Panels spoke on corporate law blogs, recent developments, and legal ethics.  One panel of particular note spoke on the Court of Chancery’s Guidelines to Help Lawyers Practicing in the Court of Chancery, which were made public in January of this year and are available here.  The panel included several practitioners — Gregory Williams of Richards Layton, Kevin Brady of Eckert Seamans, and Kevin Shannon of Potter Anderson — as well as Chancery Leo E. Strine, Jr.

The Guidelines are almost 18 pages (single-spaced); full of useful guidelines and tips on various situations that regularly come up before the Court.  Anyone practicing before that Court would do well to read, and re-read, them.

One dilemma is that the Guidelines state they are not to be cited as authority to the Court; but the panel clarified that they may be discussed and shared with opposing counsel.  I myself have seen this happen on a number of occasions given the breadth of the Guidelines.

Chancellor Strine noted that a similar set of guidelines concerning discovery is currently in the works , although there is no word on when that will be out.

The panel clarified that the best practice is to submit compendiums that include only key cases and authorities, whether or not they are “nonpublic” (i.e. only available on Lexis/Westlaw).  While Court of Chancery Rule 171(h) calls for all unreported decisions to be included, the increasing general availability of Lexis/Westlaw has taken away the original reason behind the rule, and the Guidelines hinted that including only key authorities was the better way to go.

Other interesting tidbits from the panel:

  • A practitioner should touch and feel anything that is going to the Court.  It is one thing to intellectually instruct that a filing be put together, it is another to look through it and see whether that has been done correctly and if it has whether it would be confusing or cumbersome for the courts. As an example, in a recent set of courtesy copies to the Court from a reputable Delaware firm every fifth word was garbled.  Even a quick look-through would have immediately identified the problem.
  • Delaware practitioners should be prepared to discuss anything filed with the Court with their name on it, even if they are in a Delaware counsel role to another, more active, out-of-state firm.
  • The senior Delaware attorney on the case should be involved in everything that is submitted to the Court.
  • The senior Delaware attorney need not of course be involved in every aspect of discovery, but should be involved (on both sides) in discovery disputes before they need to be submitted to the Court.  It often happens that the Court gets a laundry list of complaints about responses to discovery, a position that the Court would rather not be in.  One panelist also suggested that based upon recent decisions the Court seemed to be getting more restrictive in applying the attorney-client privilege.
  • Chancellor Strine expressed the view that he often found helpful demonstratives that somehow tied together information from a number of exhibits in a useful form, such as a chronology.
  • And finally, for those considering submitting expedited requests for action around August, keep in mind that the Court’s clerks (who typically serve one-year terms) typically turn over at that time.

Filed under: Court of Chancery




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.