Page 19 - Delaware Lawyer - Fall 2022

edge for practitioners. He was also a strong proponent of uniformity, and we all saw the value of court-wide consistency.”
The members of the Court developed an initial draft set of guidelines. Chancellor Strine then enlisted the Court of Chancery Rules Committee (the “Rules Commit- tee”) to vet the draft and to obtain input from experienced practitioners. There was a general consensus on the vast majority of issues, but others required negotiations between the bench and bar or between subsets of the bar. In a news release an- nouncing the Guidelines, the Court stat- ed: “All the members of the Court recog- nize the guidelines as sound and members of the Court will endeavor to avoid the chambers-specific approach that results in litigants having to address the idiosyncratic preferences of multiple members of the same court.”6
The original Guidelines comprised 18 pages. They included a variety of best practices, including protocols for contact- ing chambers, the use of technology in the courtroom, and case scheduling. They even included sartorial advice.7 The Guide- lines also included sample forms to assist lawyers in structuring orders for common motions, scheduling and experts, among other topics. The expectation, accord- ing to Chancellor Strine, was to “make our Bar’s life a little easier and to enable all of us to concentrate more on the mer- its, rather than procedural jousting.”8 Our bar delivered the message, promoting the Guidelines both internally and externally.9
In December 2012, the Guidelines were updated to reflect recent amend- ments to the Court of Chancery Rules gov- erning discovery and confidential filings. The December 2012 update also provided broad guidance for the discovery process that was not limited to the new amend- ments to the discovery rules. The updated Guidelines addressed procedures for the collection and review of electronically stored information, and included specific guidelines for expedited discovery appli- cable to preliminary injunction hearings.
The 2021 Guidelines Update
In 2021, under Chancellor Andre G. Bouchard’s leadership, the Court and the Rules Committee embarked on a sub- stantial revision of the Guidelines. Each member of the Court provided input, in- formed by their individual and collective experience on the bench and in private practice. The new Guidelines grew to 38 single-spaced pages. Reflecting the Court’s experience conducting countless hearings and trials utilizing video technology dur- ing the COVID-19 pandemic, this version provides expectations for remote hearings, including more sartorial advice.10 Of par- ticular note, the introduction to the 2021 Guidelines stresses that not all cases are alike and in particular situations, a judicial officer may prefer that the parties “proceed in a different manner” than reflected in the Guidelines.
After 10 years of experience with the Guidelines, the Court considers them to have been a positive contribution to the management of Chancery litigation. Chancellor Kathaleen St. J. McCormick observed: “The Guidelines are a product of constructive conversations between the bench and the bar and a reflection of the Court’s desire to continue to promote that dialogue outside of case-specific contexts.” The Court appreciates the bar’s consistent dedication to the spirit and letter of the Guidelines.
As with all suggested best practices, some areas are worthy of reinforcement:
Emailing chambers and commu- nicating with staff. Please do not draw our legal assistants into substantive or procedural disputes. If counsel are unable to agree on a schedule or a hearing date, please file a letter or, preferably, a motion.11 It is frustrating for the assistants and other Court staff when practitioners insist on debating these disputes in emails or phone calls to the assistants, who cannot resolve them and should not be forced into these uncomfortable situations. Our assistants are our gatekeepers and the managers of
our schedules. They talk to us and the oth- er judicial assistants. Staying on their good side is beneficial to your practice.
Compendiums. In conjunction with the issuance of the original Guidelines, the Court eliminated the requirement that parties supply the Court with hard copies of all unpublished decisions. The old ap- proach created added expense for litigants and was of limited utility to the Court. In- stead, the Court offered a pragmatic solu- tion, which encouraged counsel to provide the Court with hard copies of the “key cas- es,” whether reported or unreported; non- Delaware statutes and rules; and treatise sections (other than the major Delaware law treatises). Regrettably, the pendulum swung nearly to the far opposite extreme; we now rarely receive compendiums, and even then, they are frequently limited to transcripts.
Having a copy of the key cases bound, indexed and tabbed is a welcome conve- nience, at least for a judge who has not yet gone entirely paperless. When parties provide a compendium, it saves Court staff from having to print and organize the cas- es, and it increases the likelihood that briefs and supporting authorities will be dropped in a briefcase to be read when out of the office. When supplying chambers copies, be sure to keep the compendium separate from the brief (do the same with appendi- ces). When a large number of exhibits are attached to a brief, it makes the brief dif- ficult to read. Use your best judgment. For example, if the case involves the construc- tion or interpretation of a contract, consid- er attaching the contract (or the relevant portions thereof) to the brief and compil- ing the remaining exhibits in a separately bound appendix.
Legal argument. Among the more frustrating tasks for a busy trial court is wrestling with a poorly briefed argument. Delaware is blessed with rich and well- developed case law, not only in the area of corporate law, but also in commercial cases and in matters of equity. The Court relies on counsel to present well-reasoned
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