Page 28 - Delaware Lawyer - Winter 2022

FEATURE | 40 YEARS IN THE M&A BAR
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could be expected to dialog effectively with the judicial officers on both courts, who themselves were working their way toward a new jurisprudence.
This extraordinary reliance by out- of-state counsel on a select group of Delaware lawyers with whom they de- veloped strong working relationships was the product of at least three factors. First, the very nature of the expedited practice called for “up-to-speed” law- yers able to go to court on very short notice, often with little time to prepare. Second, the law was developing so rap- idly that the relatively small number of Delaware lawyers who were in almost every case had a clear leg up on out-of- state counsel in terms of understand- ing where the courts’ rapidly evolving thinking might be headed. Finally, from the outset, Delaware lawyers performed very well in this arena and it became clear to out-of-state counsel that the Delaware courts both had confidence in and a preference for members of the Delaware Bar to take the lead in major M&A cases.
Advances in Technology
That said, when I began practice it was only some 15 years after the intro- duction by Xerox of the first plain pa- per copier (there were still fading cor- porate opinions in mimeograph format in the Morris Nichols files that dated from the late 1950s). There were no mobile phones, no desktop computers, and administrative assistants (then still known as secretaries) were armed only with Selectric typewriters. Attorneys had Dictaphones into which you could “speak” the first draft of a letter or mo- tion and then give a tape to your admin to type (some old-timers still insisted on dictating to their admin in person). Many larger firms had a pool of typists in a word processing center who would handle larger projects, most notably
Tarik J. Haskins and Lauren K. Neal from Morris, Nichols, Arsht & Tunnell
briefs. The typists in this facility had access to the latest technology of the time, the IBM mag card system, which still required that pages be typed out on Selectric typewriters but also recorded each page on a separate magnetic coated card (a predecessor to the floppy disc) upon which changes and corrections could be entered and played back to the typewriter. While still a time-consuming process, it did eliminate the even more cumbersome cut-and-paste or white- out solutions.
As compared to the ability decades later to make almost instant changes to a brief on a computer, the systems in place in the ‘70s and ‘80s were particu- larly trying on those engaged in expe- dited briefing in takeover cases, which often required briefs to be prepared on very short notice, with changes made as discovery results poured in only hours before a brief was due. The all-nighter typical of the time often went like this. At 7:00 p.m., a handwritten markup of the most recent draft incorporat- ing the most recent discovery results
and comments on the phone or by fax from correspondent counsel and clients would be submitted to the black hole of word processing. Then you would wait for an hour or two to get back the next draft, upon which you would enter the inevitable corrections and additional changes. Then you would wait another hour or so to receive the next draft. If you were lucky, you would review that and direct that copies be made, or the process would repeat itself. When you left the office at 3:00 or 4:00 a.m. to get a few hours’ sleep before the oral ar- gument the next day, you realized that more than half the time since the first markup had been spent sitting around and waiting for the next draft to emerge.
The other technological advance I recall in the 1970s was the fax machine. I distinctly remember the first time I encountered one. A Morris Nichols partner and I flew down to the Tam- pa-Clearwater area to defend against a proxy contest for a client named Rahall Communications, which had a string of radio stations. We took with us a
26 DELAWARE LAWYER WINTER 2022
PHOTO BY BUD KEEGAN