Page 22 - Delaware Lawyer - Fall 2022

FEATURE | HELPING PRACTITIONERS HELP THEMSELVES
Briefing. In cases involving sum- mary proceedings or where the Court has indicated that it does not expect post-trial briefing, the parties should submit a schedule providing for a series of three briefs, with the party bearing the burden of proof submitting open- ing and reply briefs. Similarly, when the parties file cross-motions, counsel are encouraged to consider a schedule that will include opening, answering/ cross-opening, reply/cross-answering and cross-reply briefs, resulting in the submission of four briefs rather than six. Simultaneous briefing is often unhelpful in these situations and results in the par- ties not joining issue on the real areas of dispute.
Civility and professionalism.
Delaware prides itself on being a juris- diction where civility and professional- ism are hallmarks of the practice of law. The Court relies on Delaware lawyers to instill those attributes of the profes- sion in new admittees and out-of-town counsel. To assist in that endeavor, in 2003, the courts established the Prin- ciples of Professionalism for Delaware Lawyers (the “Principles”).16 Those Principles embody the attributes and expectations of all Delaware lawyers. All admittees to the Delaware Bar are re- quired to read them, as are lawyers seek- ing admission pro hac vice.
The Principles are a valuable resource, but they are not a substitute for active involvement at all levels of the bar. Dela- ware lawyers should work collaboratively with one another, even at those times where their respective co-counsel are having difficulty doing the same. Regret- tably, instances of incivility and a lack of professionalism among lawyers appear- ing before the Court continue to be cause for concern. Sanctions and, worse yet, revocation of admission are possible remedies for bad behavior, but they are inadequate, after-the-fact measures. The goal is to maintain a culture of shared values so that inappropriate conduct is avoided in the first instance.
The practice of law is a privilege. Civility and professionalism never go out of style—at least not in Delaware. We should all make it a regular practice—at least once a year—to re-read the Princi- ples and to remember that the prestige of being a Delaware lawyer is attributable to decades of unwavering adherence to the highest standards of conduct followed by those who came before us.
The Guidelines are a Court-specific applicationofthePrinciplesandreflect the tenets that have shaped the practice of Delaware law for more than two cen- turies. They continue to embody the es- sential and evolving standards expected of any successful Chancery practitioner.
As Gregory P. Williams, then-Chair- man of the Rules Committee noted when the original Guidelines were published a decade ago: “[T]he Guidelines are literal- ly full of helpful information to all Chan- cery practitioners, but I think they will be most valuable to those younger lawyers who practice in the Court. The hallmarks of Chancery practice are effective advo- cacy, respect for the Court and civility to opposing counsel. The Guidelines em- bodythoseprinciples.”17Althoughmuch has transpired in the practice of law over the course of the ensuing decade, both in the Court of Chancery and elsewhere, those words still ring true today.
NOTES
1. Vice Chancellor, Delaware Court of Chan- cery. The views expressed in this article are solely those of the author, and they do not necessarily represent the views of the Court.
2. For clarity, this article sometimes refers to the initial version of the Guidelines as the “original Guidelines.”
3. Edward McNally, Court of Chancery Circu- lates Draft Practice Guidelines, Delaware Busi- ness Court Insider (Dec. 28, 2011) (discussing a draft of the Guidelines).
4. Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Dela- ware Court of Chancery (2nd ed. 2021).
5. See, e.g., La. Mun. Police Employees’ Ret. Sys. v. Fertitta, 2009 WL 3806216 (Del. Ch. Oct. 27, 2009) (addressing third-party discovery practice); Phoenix Equity Gp. LLC v. BPG Justi- son P2 LLC, 2009 WL 5200087 (Del. Ch. Dec. 7, 2009) (letter to counsel reminding counsel that withdrawal and substitution of counsel requires an order of the court); New Castle
Shopping, LLC v. Penn Mart Discount Liquors, Ltd., 2009 WL 5197189 (Del. Ch. Oct. 27, 2009) (noting the Vice Chancellor’s prefer- ence that parties stipulate to amendments to pleadings while reserving the right to challenge the sufficiency of the pleading in an appropri- ate motion); Phillips v. Firehouse Gallery, LLC, 2010 WL 3220677 (Aug. 9, 2010) (addressing deposition scheduling); State Line Ventures, LLC v. RBS Citizens, N.A., 2009 WL 4723372 (Del. Ch. Dec. 2, 2009) (making clear that
the Court of Chancery does not recognize the term “local counsel” and requiring that “Dela- ware counsel” be substantively involved in and knowledgeable about the case).
6. Court of Chancery Announces new Practi- tioners’ Guidelines to Help Lawyers More Effi- ciently Litigate Cases (Jan. 13, 2012) (hereinafter the “Guidelines Announcement”).
7. Original Guidelines § I 7 (noting that the Court had no preference “for any particular color” of courtroom attire). The Guidelines do not represent the expectations of the Delaware Supreme Court. See Robert A. Mittelstaedt & Brian J. Murray, Who Should Do the Oral Argu- ment, 38 Litigation Vol. 48, (2012) (quoting the late Justice Randy Holland as saying: “In the Delaware Supreme Court, we expect attorneys to wear white shirts . . . .”).
8. Guidelines Announcement.
9. See, e.g., McNally, supra note 3; Henry E. Gal- lagher, Jr., Court of Chancery Issues Best Prac- tices Guidelines for Practitioners (2012); Francis G.X. Pileggi, Delaware Court of Chancery Pub- lishes Guidelines for Practitioners and Litigants (2012).
10. Guidelines B(1)(g) (“For videoconfer- ences, courtroom attire is required . . . .”); see Macrophage Therapeutics, Inc. v. Goldberg, C.A. No. 2019-0137-JRS (Ltr. Order Dec. 3, 2020) (reminding counsel that a printed tee-shirt or pajamasisnotappropriateattire,evenforremote video hearings).
11. See Ct. Ch. R. 173(a).
12. A lawyer shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Del. Lawyers’ R. Prof. Conduct R. 3.3(a)(2). Rule
3.3 provides that “an attorney should not ignore potentially dispositive authorities”; rather, coun- sel must “cite adverse cases which are ostensibly controlling and then may argue their merits or inapplicability.” Williams v. Toll Bros. Builders, 257 A.3d 1022 (Del. 2021) (quotations and cita- tions omitted).
13. See Del. Lawyer R. Prof. Conduct R. 3.3(a) (1): “A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” 14. 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015) (available at https:// www.supremecourt.gov/publicinfo/year- end/2015year-endreport.pdf).
15. E.g., books and records actions under 8 Del. C. § 220, and actions for advancement under 8 Del. C. § 145.
16. Principles of Professionalism for Delaware Lawyers (available at https://courts.delaware. gov/superior/pdf/principles_of %20_profession- alism_for_lawyers.pdf).
17. Guidelines Announcement.
20 DELAWARE LAWYER FALL 2022