Page 16 - Delaware Lawyer - Winter 2020

FEATURE
cialties was expedited litigation, and I liked that; I liked the relevance and the excitement of it. And from the perspective of a member of this Court, it’s still excit- ing, and I still enjoy it.
But certainly, the pressure of expe- dited litigation is slightly more intense from this side of the Bench, knowing that what I say will become the law in a case, and have possible impact on fu- ture cases as well. And one of the things I didn’t fully appreciate prior to joining the Bench is that, as a Vice Chancellor, everything I write or say will be subject to intense public scrutiny. That dynamic has certainly increased the pressure and slightly decreased the fun of expedited litigation.
ZURN: I also feel that pressure. It’s a good thing. Part of what makes the Court the special institution that it is, is the pres- sure to uphold the Chancery brand. The Court of Chancery is always open. The Court of Chancery moves at the speed of business. The Court of Chancery will bend over backwards to make sure parties’ real-world business needs are met and that they get an answer from us in a way that they can use in their real-world business endeavors. We all strive to maintain excel- lence in getting timely, clear answers to the parties.
LEVINE: Lawyers tend to develop their own preferred styles for written submissions and oral argument. Are there any particular techniques, ei- ther in briefs or arguments, that you have found particularly effective during your time on the Bench?
ZURN: I think being concise and declara- tive aids in portraying your message and also aids in delivering an air of confidence that you know you’re right.
The opposite of that for me would be mudslinging; if you need to take down your opponent in order to win, it may ap- pear that you can’t stand on your own two feet. It’s also just not the Delaware Way.
McCORMICK: I’m open to good argu- ments no matter how they come to me. So I don’t have any strong preference for any particular style. I appreciate when someone grapples honestly with difficult
facts and legal issues and works not only to point them out but also to tell me why I should rule in their favor. So I appreciate a healthy level of intellectual honesty. That’s fairly common in our Court.
LEVINE: Some people consider themselves to be visual learners and prefer charts, diagrams and other vi- sual aids, while others prefer more traditional reading and internalizing based on the briefs. Do you have a preference for how you like to re- ceive information?
McCORMICK: I mentioned a while ago from the Bench that I’m a visual learner, and that’s true. I think that the more thought litigants give to concisely and carefully packaging their arguments in ways that are ingestible, the more appre- ciative I am. Sometimes it’s a chart. Some- times it’s simply a well-structured brief. I don’t know that I strongly prefer one way or the other. I will say that I have gotten a lot of charts since I declared that I am a visual learner, and some have been more useful than others.
ZURN: I agree that visual aids can be helpful, particularly if they slice and dice the information in a different way or package it in a different way than a brief can. Sometimes there’s another angle to the information that’s captured in a visual
aid that isn’t as clear in a verbal recitation. I like a good timeline. I realize saying that, now I’m going to get a timeline in every case.
What is not always particularly helpful is just a slide deck of bullet points from a brief or bullet points from the exhibits. The one additional point that I will add here is that, for a trial on a paper record, I like counsel to sit and walk through the actual exhibits with me. Burning through the presentation at breakneck speed with bullet points from the exhibits is not help- ful, and it’s taking the place of a more rig- orous discussion. Let’s just spend the time together, walk me through it, show me how it works.
LEVINE: Discovery disputes, which I know are every judge’s favorite dis- cussion topic, sometimes require the Court’s assistance. What advice can you give lawyers who are consider- ing bringing a discovery dispute be- fore you?
ZURN: So I think counsel need to cross a few steps off the list before bringing a motion. The most meaningful is to set discover y parameters at the beginning of the case, including e-discovery protocols, custodians, search terms, etc. I think an ounce of collaboration upfront is worth a pound of cure on the back end.
14 DELAWARE LAWYER WINTER 2020