Page 18 - Delaware Lawyer - Winter 2020

FEATURE
LEVINE: These sound like two voices in favor of approaches like the detailed discovery plans that Vice Chancellor Laster has been advocating for some time now.
McCORMICK: Absolutely.
ZURN: Yes. You asked earlier what in my past has informed my ap- proach on the Bench. Having spent time both as an associate and then as a law clerk in District Court, where they have a much more regi- mented way of structuring discov- ery upfront, I think more structure can only help.
LEVINE: Every judge has their
own preferences for resolv-
ing disputes. How do you like to be apprised of discovery disputes? Do you prefer formal motions? Letters? Something else?
McCORMICK: For me, form follows function. Ever y discover y dispute is a lit- tle bit different. So how you present it will depend on the underlying issues. I only prefer that parties not call chambers with discovery disputes.
ZURN: I think there’s value in the formal- ity of a motion. I think it lets us know when it’s going to end, as opposed to a letter which could be responded to by another letter and another and another and another and another. And I think the formality leads people to think carefully about how they structure what they pres- ent. So I prefer a motion.
LEVINE: Another aspect of litigation practice that seems to be increas- ing is the filing of motions for recon- sideration. Based on the Court’s published opinions, those motions are seldom successful. Do you have any suggestions for counsel to consider before moving for re- consideration?
ZURN: First of all, I don’t think any of us take them personally. We’re all here to do a job and be professionals, and if we got it wrong, then we got it wrong. But I think there are perhaps three boxes you need to tick before you file the motion.
McCORMICK: I’m reluctant to reveal a favorite decision or author because I feel like, much like the charts, it will show up in every case.
I have to say that I’m blessed with amazing colleagues, and nothing is more exciting to me than seeing an alert pop up on my email that one of my colleagues has issued a decision and I get to read it and see how it may im- pact issues that are likely hitting my docket. Each one of my col- leagues is extraordinarily gifted, so I would place them all among my favorites.
LEVINE: Are there any pet
peeves or frustrations that you have encountered during your time on the Bench that you believe it will be helpful for members of the Bar to know?
ZURN: In the context of expedited liti- gation, in particular a motion for tem- porary restraining order or a status quo order, it would be incredibly helpful if the movant could identify any drop-dead date up front. We spend resources try- ing to get those matters scheduled in a way that makes sense for the parties, and that’s hard to do if the date of whatever triggering event is buried in the brief and it’s difficult to suss out. Sometimes it’s not in there at all. It would really be help- ful for us to know that information when we’re trying to coordinate the briefing on those expedited matters and squeeze in the hearing.
LEVINE: So don’t bury the lede. ZURN: Don’t bury the lede. Put it right
up front.
McCORMICK: That’s excellent advice. I would also say that stipulating to a schedule is very helpful. We want people to work things out and agree as much as possible to obviate the need to expend ju- dicial resources on things like scheduling. But when the parties stipulate to a sched- ule that gives the judge all of two seconds to write a decision, it becomes very dif- ficult. And we may not always pick up
16 DELAWARE LAWYER WINTER 2020
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First, have you made the argument be- fore? If so, don’t file the motion. Second, if you have not made the argument be- fore, there better be a good reason why before you file the motion. And third, it’s very important to properly characterize the court’s ruling. I’ve seen some that mischaracterize a ruling, and that’s not going to work out well.
McCORMICK: Candidly, I strongly dislike those motions. I have no further insight other than what Vice Chancel- lor Zurn has already said. It’s hard. We have a lot of work on our plates, and to have to effectively address the same issue multiple times is just inefficient. And so I definitely ask that attorneys think very carefully about the bigger picture and the burden they place on the Court when they file frivolous post-ruling motions.
LEVINE: As we all know, Delaware has a rich history of excellent judg- es across our courts, state and federal. Do you have any favorite opinions or any judges whose ana- lytical or drafting approaches you particularly admire?
ZURN: I’m partial to Judge Andrews, having clerked for him. But that aside, I’m always thrilled when I find a Chan- cellor Allen decision that addresses my issue. I find his writing to be so concise and his logic and sense of equity to be impeccable.