Page 20 - Delaware Lawyer - Fall 2022

FEATURE | HELPING PRACTITIONERS HELP THEMSELVES
Vice Chancellor Paul A. Fioravanti, Jr.
counsel has been involved from the outset. If not, then Delaware counsel — and par- ticularly senior Delaware counsel — need to engage and manage the dispute before it gets out of hand. Few judges enjoy referee- ing discovery disputes; so, when they come to the Court, there is an expectation that Delaware counsel has worked cooperative- ly and in good faith to resolve, or at least narrow, the issues for the Court.
Far too often, the “meet and confer” consists of emails or letters that are largely unproductive. Rather than sending an email or a letter, perhaps a phone call or an in-person meeting, where parties en- gage in a meaningful give and take, would help to resolve the dispute. As Chief Justice John Roberts of the Supreme Court of the United States observed a few years ago:
I cannot believe that many mem- bers of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burden- some discovery requests or evading legitimate requests through dilato- ry tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperating solutions, chart a cost- effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.14
Keep the Court updated. When issues or entire cases are resolved, please inform the Court as soon as possible. This is especially important in expedited matters and when a hearing is approaching. The judicial of- ficers and their clerks regularly prepare for arguments in the evening and on week- ends. If a dispute is resolved — whether case dispositive or not — file a letter. If a letter is not feasible, send an email to the judicial officer’s assistant, regardless of the time of day. On a related note, if the par- ties have narrowed the issues in advance of an argument, let us know that, too, so that the Court can focus its attention on the re- maining unresolved issues.
Joe Cicero of Chipman Brown Cicero & Cole, LLP and James Levine of Troutman Pepper Hamilton Sanders LLP
and well-supported legal arguments. A brief that lacks citation to relevant legal authority or a concise analysis of the is- sues is not helpful on multiple levels. First, it reflects poorly on the client. Second, it creates credibility issues for counsel, not only in the case at bar, but also in future cases. Third, it creates additional work for the Court, which is ever mindful that its decisions are carefully scrutinized in Dela- ware and beyond. The best advocates pres- ent crisp, cogent arguments in support of their client’s position and distinguish the cases that support the other side. If there is authority that is contrary to your position, disclose it. Indeed, the Rules of Profession- al Conduct require it.12 Besides, if you do not address contrary authority, your oppo- nent most surely will.
Admit mistakes. Mistakes happen — contrary authority may have been overlooked; a case may have been cited
for a proposition that, upon review, is untenable; or a deadline was missed. Do not panic. Conversely, do not ignore the oversight. Address it promptly. Call your opponent; file a corrected brief; send a letter to the Court advising of the error. It is far better — both for your client and your reputation — to admit the mistake, take responsibility for it and move on, rather than to have your opponent — or, perhaps, worse yet the Court — expose it during argument or in an opinion.13
Discovery. Meet and confer. The Court understands that out-of-town counsel may have the lead role in respond- ing to discovery requests and producing documents. The Guidelines emphasize the importance of Delaware counsel in the process. The role of the Delaware lawyer is critically important when disputes arise and the potential for judicial involvement appears on the horizon. Ideally, Delaware
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