In | On January 20, 2012
Recently, the Court of Chancery published “Guidelines to Help Lawyers Practicing in the Court of Chancery” (the “Guidelines”). Unlike the Court’s rules, the Guidelines are non-binding and should not be cited as authority. Instead, the Guidelines “reflect some suggested best practices for moving cases forward to completion in the Court of Chancery.” The Guidelines touch upon a wide range of issues concerning Chancery practice, each of which is identified below along with some highlights for each topic.
I. Guidelines for Practitioners for In-Court Hearings and Trials in the Court of Chancery
- PDAs, Cell Phones, and Other Devices: While counsel may bring phones into the courthouse, they are prohibited from having them in the courtroom. Counsel may be subject to sanctions or expulsion from the proceeding for violations.
- Consult About Technology Needs the Week Before: The Register in Chancery, with a week’s notice, can assist in arranging the necessary technology. The Court also has a limited number of technology carts available for reservation and use. Counsel should not fail to utilize the reserved technology during proceedings.
- Laptops for Trial or Hearing Use Only: While laptops are permitted for use in a proceeding, they may have to be removed if they create noise or serve as a distraction.
- Proper Attire: The unwritten “white shirt” rule of Chancery lore is no more – the Court is fine with any color so long as the sartorial selection is formal business attire.
- Hearing Protocols: In addition to encouraging solemn behavior during proceedings, the Guidelines remind all persons to stand when introduced – a frequent mistake for those new to or unfamiliar with the Court.
- Respect for the Court and Court Staff: Clerks, court reporters, and other staff assist in Court procedures and help fulfill the Court’s expectations – and should be afforded the same level of respect as the judiciary.
- Respect for the Courthouse Facility: When meals need to be delivered during a proceeding, parties may have deliveries made to the conference rooms outside the courtroom or may rent larger conference rooms through the Administrative Office of the Courts.
II. Guidelines on Best Practices for Litigating Cases Before the Court of Chancery
- Role of Delaware Counsel: As has been consistently echoed in the Court of late, “Delaware Counsel” may not abdicate themselves of any responsibility. To be clear, “[t]he concept of ‘local counsel’ whose role is limited to administrative or ministerial matters has no place in the Court of Chancery.”
- Scheduling Guidelines: While the Court rules do not specify a briefing schedule, the Guidelines suggest a 30-30-15 schedule for non-expedited dispositive briefs. Summary proceedings should be just that – summary (45-60 days). Parties should consider presenting summary proceedings on a paper record. The Guidelines provide a number of sample scheduling stipulations. As for experts, the Guidelines encourage limiting written discovery to the final report and any materials considered or relied upon. Finally, where summary judgment motions may be made, parties should schedule sufficient time for the Court’s consideration such that the Court is not considering such motions close to trial. If “boxes from each side containing hundreds of exhibits with briefs arguing different versions of events” are submitted, such motions may not be warranted.
- Pleadings: Like discovery responses, answers should repeat the allegation followed by the response. As for amended pleadings, the Guidelines encourage parties to stipulate to the amendment while reserving the right to challenge the pleading’s sufficiency, instead of initially challenging on futility grounds.
- Motions: Motions under 15 pages should include enumerated paragraphs. Longer motions should take the form of a motion with a brief in support thereof. Motions to expedite should address the proposed schedule so that the Court is informed prior to the teleconference. Where there are substantive cross-motions – and perhaps numerous parties – efforts should be taken to reduce the number of briefs filed (e.g., where two parties are involved, a four brief sequence as opposed to a six brief sequence).
- Confidentiality Stipulations and Orders: Where parties want to protect highly confidential information from public disclosure, they should make an application for a closed courtroom well in advance. Notwithstanding such application, the default remains “that proceedings in open court are generally public . . . .”
- Discovery Disputes: In an apparent effort to have the parties extensively meet and confer prior to involving the Court, the Guidelines suggest “[t]he Court will not be inclined to consider arguments or authorities that have not previously been presented to the other side.” (emphasis added).
- Compendia and Appendices: Using judgment, counsel may want to include: (1) the most important unreported cases; (2) important non-Delaware published authorities; and (3) treatises that are not the “major Delaware treatises.” Parties need not attach every authority cited and are encouraged to truncate the compendium and appendix within reason.
- Trial Procedure: Exhibits should be submitted in chronological order – not in the order they were cited. At trial, counsel needs to keep score of their own trial time and confer with opposing counsel throughout the trial to make sure the “score” is accurate. Finally, the Court prefers that witnesses be called once, with cross-examination not limited to the direct examination’s scope.
- Representative Actions: Parties in a representative action should regularly advise the Court of related actions concerning the same subject matter and should promptly present for approval any settlement in the Chancery matter.
- Contacting Chambers: Generally all parties should be present on any call with the Court. Letters should be confined to five double-spaced pages – for longer submissions, a motion may be warranted.
- Forms of Order: Where the parties cannot agree to a form of order, the prevailing party should submit a letter (or motion if lengthier) identifying the discrepancies and a proposed form of order. The non-prevailing party should submit a redlined version of the proposed form of order with the opposition. The prevailing party may then reply.
- Courtesy Copies: Except for routine filings (e.g., pro hac vice motions), substantive filings should be sent in duplicate hard form to the Court along with a non-argumentative cover letter.
All Chancery practitioners are encouraged to review the Guidelines. Familiarity with and implementation in practice of the Guidelines will help achieve the Guidelines’ intended goal of “reduc[ing] conflicts among counsel and parties over non-merits issues, and allow[ing] them to more efficiently and less contentiously handle their disputes in th[e] Court [of Chancery].”
If you have any questions or comments about the foregoing or any other matter of Delaware law, please do not hesitate to call.