Page 13 - Delaware Lawyer - Issue 3 - 2024

out of law school and
Q: What was your first job
what are some other
legal positions you had before
joining the Court of Chancery?
My first job was back at Prickett Jones
doing insurance defense. I loved the
people there, but did not much enjoy the
work, and decided to leave law. I actually
have a certificate of retirement from the
Delaware Supreme Court — retirement
class of ’85 — that came with a letter
thanking me for my service to the Dela-
ware Bar (all of a couple of years at that
point). I spent time traveling the country
and worked as a bartender at Kelly’s Lo-
gan House. But then, I met the woman
who would become my wife, and we got
married and started a family and I real-
ized I had to do something else. I was
about to start at a chicken plant box-
ing chicken carcasses. The Friday night
before the Monday that I was going to
start at the chicken plant, my old history
professor and mentor invited me to a
dinner with Bill Chandler. By the end of
that dinner, I became Bill Chandler’s law
clerk on the Superior Court and fore-
went the boxing job. I like to think I’d
be a shift supervisor at the chicken plant
by now, though.
Q: Thinking back to those first
few years of your legal practice,
do you have advice you would
give to young Delaware lawyers
about the beginnings of their own
careers?
I do. First, my advice for them is do
not think that you know what your ca-
reer will hold, because you do not. So,
stay open to opportunities and experi-
ences. You cannot predict where those
may lead and where you will end up.
My second piece of advice, which I
think you would get from any judge, is
that you start off in the courtroom with
a presumption of candor and truthful-
ness. Do not lose that. It is the most
valuable thing you have as a lawyer.
Q: You first joined the Court of
Chancery in 1999 as what was
then called a Master in Chancery,
now known as Magistrates in
Chancery. Why did you decide to
join the Court of Chancery?
So, as I said, I clerked for Bill Chan-
dler on the Superior Court and then in
Chancery. After that, the Chancellor
was kind enough to appoint me as a spe-
cial discovery master on some cases dur-
ing that time. I loved that quasi-judicial
work. At that time, there was only one
Master in Chancery and Richard Kiger
was stepping down. Bill Chandler of-
fered me the job and I was thrilled. My
office was the old, long-vacant Chan-
cery chambers in the Sussex County
courthouse — it was a neat old space
but everything was covered in dust. I
pulled an Atlantic Reporter off the shelf
once and moths literally flew out.
Q: You served in that position
for 12 years. What was that
experience like and how do
you think it differs, if at all, from
the current experience of the
Magistrates in Chancery?
Well, first of all, the Magistrates in
Chancery today are much smarter than
the Master in Chancery was back in
1999. They have a much more complex
docket. Of course they are still doing
the traditional equity work like guard-
ianships, trusts and estates, easements,
but they also have more corporate work
than before. I really enjoyed the tra-
ditional equity docket and those types
of cases during my time as a Master in
Chancery. It was a great gig.
Q: What was your experience
like once you became a Vice
Chancellor in 2011? What types
of cases made up the bulk of the
Court’s docket at that time?
At that time, the Court was still doing
mostly traditional equity corporate law
cases. The LLC boom was just starting to
accelerate. The docket when I first started
was still mostly made up of common-law
fiduciary corporate cases. So, it was not a
big stretch for me to go from a traditional
equity docket as a Master in Chancery to
an equity docket in the corporate arena.
I had come from that background. And
with the common-law fiduciary duty cas-
es, the law itself is simple. It is the facts
that are the challenge and how they com-
port with fiduciary duties.
Q: Over your approximately
13 years as a Vice Chancellor,
what are the biggest changes
you have noticed in terms of the
Court’s docket and case load?
It is a much more contract-heavy
docket now. And those cases tend to go
to trial more so than the fiduciary cases.
As you know, in the fiduciary duty cases,
the standard of review is so important
that once the parties know whether en-
tire fairness applies, it is not atypical for
a settlement to occur. That is a rational
decision by the parties.
For the contract-based cases, if there
is some contractual ambiguity that the
Court needs to address and it cannot
be decided as a matter of the law, then
those cases go to trial much more fre-
quently. So, we have more trial work.
We are also seeing many more earnout
cases, and those also tend to go to trial.
Another big difference is that Chan-
cellor Bouchard did away with the
disclosure-only settlement cases with
the Trulia decision. That decision com-
pletely changed the routine practice of
bringing those cases.
Q: Throughout your time as a Vice
Chancellor, you have obviously
presided over many, many cases
and written countless judicial
opinions, orders and rulings.
Thinking back over your body of
judicial work, what are some of
the most noteworthy changes in
substantive Delaware law that
you think have occurred during
that time period?
ISSUE 3 2024 DELAWARE LAWYER 11