Page 18 - Delaware Lawyer - Summer 2023

FEATURE | BROKEN-DEAL DISPUTE RESOLUTION
The Court’s criticism of the Texas lawyer’s approach and its expectation that the presence of a Delaware lawyer would cure or, at least, mediate, the of- fensive behavior is an excellent example of the importance of “The Delaware Way” to Delaware courts. Specifically, in their analysis of the record in Para- mount, the Delaware Supreme Court justices discovered “a serious issue of professionalism”3 during a deposition taken by a Delaware lawyer.4 The de- position took place in Texas and was defended by a Texas lawyer. The Texas lawyer’s conduct during the deposi- tion proceeding was so egregious under Delaware standards that the Supreme Court seized this opportunity to pub- licly warn — in an entire Addendum to a precedential corporate law opinion — other outside lawyers of the conse- quences of violating Delaware standards of civility and professionalism.5
ery delays and failures to comply with court orders. All efforts having failed, ultimately, the Court imposed harsh sanctions on the plaintiff and outside counsel.6
When not acting as lead counsel, Delaware counsel’s role in dispute reso- lution, whether by trial or alternative dispute resolution, is as multifaceted as it is important. Delaware counsel assist clients and outside counsel with navigating the nuances of Delaware law and facilitate the zealous representa- tion of the client within the bounds of Delaware customs.7 Counsel admitted pro hac vice and clients are well-served by the core competencies of Delaware counsel and are wise to rely upon Dela- ware counsel’s substantive and pro- cedural expertise, as well as Delaware counsel’s knowledge of the individual jurist’s expectations, preferences and, perhaps, idiosyncrasies.
Aveta Inc. v. Bengoa,9 a party’s utiliza- tion of Delaware counsel is not dupli- cative or an unnecessary expense. “Be- cause of their focus on our State’s law, Delaware lawyers frequently can answer in a telephone call questions about this jurisdiction that a forwarding law firm would spend hours or days researching. Delaware counsel can readily point to leading authorities, provide precedent filings, and help forwarding counsel prepare the case (including developing the discovery record) so that the mat- ter can be presented most effectively. Delaware counsel must be involved sufficiently to fulfill their obligations to this Court. Giving a meaningful role to Delaware counsel is reassuring, not troubling.”10
Delaware Counsel and Dispute Resolution
The landscape of business dispute resolution is always evolving. On Feb- ruary 23, 2023, Chief Justice Seitz of the Delaware Supreme Court issued a Cross-Designation Order, granting the Chancellor authority to transfer Section 111 cases from Court of Chancery to the CCLD.11 The Cross-Designation Order further showcases the CCLD as the specialized business arm of Dela- ware’s general jurisdiction trial court and streamlines the Court of Chan- cery’s ability to share the burden of Section 111 contract disputes with the CCLD. Only five months later, 24 cases have been transferred from the Court of Chancery to the CCLD through the Cross-Designation Order.
When Delaware counsel advise cli- ents and co-counsel what to expect in this different forum, assurances should be offered that the CCLD judges are well-equipped to preside over and issue scholarly decisions on these complex disputes. Delaware counsel also should be prepared to address questions about how litigating in the CCLD might be different than litigating in the Court of Chancery. One important differ-
Delaware counsel’s role in litigation is not hyperbolic; it is a strategic asset. The Delaware Bar is a small community, which means that many of us have worked together for years, if not decades.
It would be a mistake to write off the Courts’ expectations as set forth in Par- amount as anachronistic and currently irrelevant. To the contrary, Delaware counsel is expected by Delaware Courts to have a substantive role in litigation. Recently, for example, Vice Chancellor Zurn referenced Her Honor’s efforts to utilize a plaintiff’s Delaware counsel to manage the plaintiff and his outside counsel through numerous discov-
Delaware counsel’s role in litigation is not hyperbolic; it is a strategic asset. The Delaware Bar is a small commu- nity, which means that many of us have worked together for years, if not decades. There is an added element of profession- al trust that is inherent when working with another member of the Delaware Bar.8 This, generally, further lends itself to more efficient proceedings.
As Vice Chancellor Laster noted in
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