“Substantive Best Practices” Best Practices in Appellate Law
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Biographies of Speakers
The Honorable Karen L. Valihura, Justice, Supreme Court of Delaware Stephen E. Jenkins, Esquire, Ashby & Geddes Edward P. Welch, Esquire, Skadden Arps Slate Meagher & Flom LLP
Program Materials *
Fundamentals of Practice before the Delaware Supreme Court Top 10 Keys for Success
* The forms included herein are samples only and may not be appropriate for any particular matter.
1 Justice Karen Valihura The Honorable Karen Valihura was sworn in for her first term as Justice of the Supreme Court of Delaware on Friday, July 25, 2014. Chief Justice Leo E. Strine, Jr., administered the oath of office. Prior to her appointment to the Supreme Court, Justice Valihura was a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, where she practiced law since 1989. Her practice in complex commercial and corporate issues included federal and state securities fraud claims, mergers and acquisitions, and fiduciary duties of directors. Due to her preeminence in the field, Justice Valihura has been consistently selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America. Justice Valihura served on the Advisory Board of the John L. Weinberg Center for Corporate Governance and served as Chair of the Delaware Supreme Court's Board on Professional Responsibility and as Chair of the Delaware Supreme Court’s Permanent Ethics Advisory Committee on Delaware Rules for Professional Conduct. Justice Valihura served for eight years on the Corporation Law Council of the Corporation Law Section of the Delaware Bar. Additionally, Justice Valihura served her community as a member of the Board of Directors for the Delaware Special Olympics for eighteen years and as a member of the Delaware Bar Foundation for eight years. Justice Valihura received her undergraduate degree from Washington and Jefferson College in 1985, and her law degree from the University of Pennsylvania Law School. She served as a law clerk to Judge Robert E. Cowen of the U.S. Court of Appeals for the Third Circuit.
Stephen E. Jenkins
Steve Jenkins is a graduate of Georgetown University (A.B. 1976) and the Georgetown University Law Center (J.D. 1982, magna cum laude). He has practiced law at Ashby & Geddes in Wilmington, Delaware since 1985. Steve practices in the area of corporate litigation, and has litigated numerous cases in the Delaware Court of Chancery and the United States District Court for the District of Delaware, and has argued appeals in the Supreme Court of the State of Delaware and the United States Court of Appeals for the Third Circuit. Edward P. Welch Biography
Ed Welch is a partner at Skadden, Arps, Slate, Meagher & Flom LLP. His practice includes corporate and securities law, with an emphasis on mergers and acquisitions. He frequently litigates in the Delaware Court of Chancery, the Delaware Supreme Court, and other courts through the country. He is co-author of Folk on the Delaware Corporation Law, and the recently published book Mergers & Acquisitions: Deal Litigation Under Delaware Corporation Law.
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FUNDAMENTALS OF PRACTICE BEFORE THE DELAWARE SUPREME COURT
The following is a brief outline of the fundamentals of practice before the Delaware
Supreme Court. Necessarily this outline cannot be a comprehensive treatment of the subject.
The authors have attempted to avoid a mere summary of the Rules of the Supreme Court.
Rather, the primary emphasis of this outline are a series of “Practice Pointers.” In many instances, these Practice Pointers may seem overly fundamental to the practitioner. However, experience has taught the authors that even experienced counsel will occasionally overlook these seemingly basic matters.
I. THE RULES
Prudent counsel will always consult the Supreme Court’s Rules every time a question arises. Memories can often play tricks, and the Supreme Court Rules can easily be confused with similar rules. Compare Supreme Court Rule 18 (15 days to apply for reargument) with
F.R.A.P. 40 (14 days to apply for rehearing). See also Bowen v. E.I. duPont de Nemours and
Co., Inc., 879 A.2d 920 (Del. 2005) (noting another difference between federal and Delaware appellate procedure). The Supreme Court’s Internal Operating Procedures (“IOP”) are published in the Rules Volume of the Delaware Code and should always be consulted by counsel.
Practice Pointers:
Amendments to the Rules are posted on the Supreme Court’s website
(www.courts.state.de.us/supreme) and are usually circulated by email to members of the Bar by the DSBA.
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The Supreme Court Clerk and the Supreme Court Administrator can often provide assistance concerning the Rules. Remember that this assistance is informal and is not binding upon the Court or opposing counsel. The Clerk and the Court Administrator are not authorized to waive the requirements of any statute or Rule. I.O.P. III (1).
When faced with a quandary about the operation of the Rules, consider filing a precautionary pleading. For example, if you are unsure whether a particular order is an interlocutory or a final judgment, you may consider filing a “Precautionary Notice of Appeal” to protect your client’s interests in the event that the order is a final judgment. Explain in the text of any such pleading why you believe the pleading is “precautionary” and why you have elected to file it.
A good source of information is the Court’s website, which can be accessed through www.courts.state.de.us/supreme. Information such as the Court’s Rules, administrative directives, argument schedule and recordings of past oral arguments can be found there.
II. IN THE TRIAL COURT
It goes without saying that the foundation of a successful appeal is constructed in the trial court. Supreme Court Rule 8 provides in part that “[o]nly questions fairly presented to the trial court may be presented for review.” The emphasis is on the word “fairly.” The bare mention of a contention to the trial judge will often not suffice to preserve an issue for appeal. Rather, the contention must be raised in a timely manner and in sufficient detail so as to allow the trial judge a fair opportunity to consider and rule on it. Failure to do so may preclude you from raising that contention on appeal. See Shively v. Klein, 551 A.2d 41 (Del. 1988) (presentation of new theory -2- RLF1-2781613-5 of liability for first time at prayer conference precluded appellate review of trial court’s denial of that theory); Ortiz v. State, 869 A.2d 285, 291, n.4 (Del. 2005) (“In the future, conclusory assertions that the Delaware Constitution has been violated will be considered to be waived on appeal.”)
Practice Pointers:
Should the trial judge excludes evidence you wish admitted, be certain to make an offer of proof on the record outside the hearing of the jury. D.R.E. 103(a)(2)(c).
Documents that are excluded should be marked for identification so that on appeal there is no question about which document you sought to have introduced.
Be wary of informal agreements on key matters which do not appear on the record. See Superior Court Civil Rule 90(c) (agreements between attorneys not considered by the Court unless they are in writing and filed with Prothonotary or are stated on the record in the presence of the court).
Sidebar conferences must be recorded unless they involve trivial scheduling matters. Should a “scheduling sidebar” unexpectedly become a discussion of matters of substance, you should ask for a court reporter. Alternatively, at the conclusion of the unrecorded sidebar, ask permission to summarize the sidebar on the record. Be certain to obtain a concession on the record from opposing counsel that your summary was accurate and complete.
Be certain that every pleading is docketed by the clerk. In the haste of trial it is easy to forget to hand the clerk a copy of a requested jury instruction, motion for
-3- RLF1-2781613-5 directed verdict etc. and, on rare occasions the clerk may be given the document but forget to docket it. The omission of such a document from the record may be fatal to your appeal.
Where possible, try to anticipate motions during a trial and have short
“pocket briefs” available to give to the Court. Not only will this be of assistance to the trial judge, but also it will help assure that you have “fairly presented” your contention for purposes of appeal.
III. DECIDING WHETHER TO APPEAL
Before deciding whether to appeal, you should consider whether the appeal is being taken from a final judgment. Although there is constitutional authority for the Court to accept both appeals from final judgments and interlocutory appeals, the procedural implementation of that authority is for the Court to prescribe. Pollard v. Placers, Inc., 692 A.2d 879 (Del. 1997). The
Court made the policy decision to accept only interlocutory appeals which satisfy certain relatively narrow criteria, and it adopted Supreme Court Rule 42 to effectuate this policy. Id.
Thus, only appeals from final judgments may be taken as a matter of right. All other appeals are interlocutory. Julian v. State, 440 A.2d 990 (Del. 1982).
Generally speaking, a judgment is final only where the trial court has declared its intention that the order is its final act in the case. Tyson Foods, Inc. v. Aetos Corp., 818 A.2d
145 (Del. 2003); J. I. Kislak Mfg. Corp. of Delaware v. William Matthews, Builder, Inc., 303
A.2d 648, 650 (Del. 1973). For example, a trial court’s grant of summary judgment to one of two defendants (leaving the other defendant in the case) is not a “final judgment” for purposes of appeal unless the trial court has entered judgment pursuant to Civil Rule 54(b). Shellburn, Inc. v.
Roberts, 238 A.2d 331, 335 (Del. 1968). A notice of appeal filed while a timely motion for -4- RLF1-2781613-5
Reargument is pending is premature, and the appeal will be dismissed. Bowen v. E.I. duPont de
Nemours and Co, Inc., 879 A.2d 920 (Del. 2005). It is not always clear whether an order is a final judgment and, on occasion, the Supreme Court has found it necessary to remand a matter to a trial court to clarify whether that court intended the order to be its final act in the case.
Mummert v. Wiggin, 616 A.2d 325 (Del. 1992).
Collateral orders can sometimes constitute final judgments that are subject to immediate appeal, but they are rare. Generally speaking, they must constitute a final disposition of a right that is not an ingredient of the cause of action, bind persons who are not parties to the underlying action and have a substantial continuing effect on important rights Gannett Co. v. State, 565
A.2d 895 (Del. 1989). For example, the Court has found that an order making confidential the names of jurors in a criminal case is a collateral order subject to an immediate appeal by a news media intervenor. Gannett, supra. It has also found that sanctions imposed on an attorney constitutes a collateral order subject to immediate appeal. Evans v. Justice of the Peace Court
No. 19, 652 A.2d 574 (Del. 1995). On the other hand, the Court has held that the grant of summary judgment on certain claims, but not disposing of all claims, is not a collateral order subject to immediate appeal. Collins v. The African Methodist Episcopal Zion Church, 2006
Del. LEXIS 419 (Del. Aug. 11, 2006) (ORDER).
In determining whether a judgment is final, care should be taken to analyze the issue in terms of Delaware law -- and not analogous federal law -- because the results can be very different. For example, under federal law the judgment of a trial court which leaves questions of attorneys’ fees unresolved is a “final judgment” for purposes of appeal, whereas under state law it is not. Compare Bundinich v. Becton Dickinson and Co., 486 U.S. 196 (1988) (decision on
-5- RLF1-2781613-5 merits leaving issue of attorneys’ fees unresolved is a final judgment for purposes of appeal) with San Del Packing Co. v. Garrison, 1999 WL 591845 (Del. July 12, 1999), (unresolved issue of attorneys’ fees means judgment on merits is not final). As another example of the difference between the two systems, a federal statute allows an appeal as of right from the grant or denial of a preliminary injunction. [28 U.S.C. § 1292(a)(1)], whereas, review of such rulings by the
Delaware Supreme Court are at the Court’s discretion, which is guided by Rule 42 governing interlocutory appeals. S.I. Management L.P. v. Wininger, 707 A.2d 37 (Del. 1998).
Although a lower court judgment is not final if a claim for attorneys’ fees is still pending in the lower court, the mere pendency of a claim for costs does not suspend the finality of a trial court’s judgment. Emerald Partners v. Berlin, 811 A.2d 788 (Del. 2001). Thus, the filing of a notice of appeal within 30 days of an order deciding the motion for costs, but more than 30 days after filing of the underlying judgment, will limit the Supreme Court’s review to the motion for costs. Cahall v. Thomas, 889 A.2d 966 (Del. 2005).
Another problem can arise for the unwary practitioner who attempts an appeal from a decision of a court commissioner. Postles v. Division of Child Support Enforcement, 784 A.2d
1081 (Del. 2001) (“This Court does not have jurisdiction to consider an appeal -- any appeal -- from an order of a Family Court Commission.”); Johnson v. State, No. 212, 2005 (Del. 2005)
(Court lacks jurisdiction to hear appeal from decision of Superior Court Commissioner). The remedy for a litigant aggrieved by a Commissioner’s decision is to seek review by a judge of the trial court involved. Johnson v. State, supra. Thereafter, the aggrieved party may seek Supreme
Court review (assuming the other jurisdictional elements of Supreme Court review are satisfied) of the judge’s decision.
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When deciding whether to take an appeal in civil cases, the cost and benefits should be considered. The costs of prosecuting an appeal an easily extend into the tens of thousands of dollars, if not more. Balanced against these costs is a statistically low chance that any given appeal will result in a reversal. According to statistics compiled by the Administrative Office of the Courts, during fiscal year 2006, only nine percent of civil appeals and five percent of criminal appeals resulted in a reversal. This is not to say that the Supreme Court rubber stamps the trial courts’ decisions -- to the contrary, the Court has never been hesitant to reverse when it has found prejudicial error. Instead, the reversal rate is a measure of the ability of the state’s trial judges to get it right the first time.
IV. THE NOTICE OF APPEAL
It is critical that the notice of appeal be timely filed. The notice must be filed within 30 days “after entry upon the docket of a judgment ... from which the appeal is taken.” Supreme
Court Rule 6. This 30 day limit is jurisdictional. Riggs v. Riggs, 539 A.2d 163 (Del. 1988).
Unlike federal procedure, Delaware law does not provide for the grant of an additional 30 day period for perfecting an appeal. Compare F.R.A.P. 4(a)(5) (district court may extend time filing notice of appeal 30 days upon showing of excusable neglect or good cause).
A timely motion for a new trial in a civil matter extends the time for filing a notice of appeal in a civil matter. Beware, however, that a timely motion for a new trial in a criminal matter does not extend the time for filing a notice of appeal. Eller v. State, 531 A.2d 951 (Del.
1987).
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The time for filing a cross appeal is not strictly subject to the 30 day limit. A cross appeal may be filed within 15 days of the filing of the notice of appeal or within 30 days of the final judgment, whichever is later. 10 Del. C. §149; Supreme Court Rule 6.
The form of the Notice of Appeal is set out in Official Form A. The Rules provide that the Notice of Appeal should “comply substantially” with the Official Form. Any deviation from that form should be done with extreme caution. Pay careful attention when specifying in the
Notice of Appeal the orders from which the appeal is taken, as this specification can limit the scope of the appeal. Trowell v. Diamond Supply Co., 91 A.2d 797 (Del. 1952) (appeal from denial of motion for new trial did not bring the final judgment up for review); Cahall v. Thomas,
2005 DE Lexis 197 (Del. May 16, 2005) (same).
Notices of Appeal must be electronically filed. Documents filed electronically on or before 11:59 p.m. ET are considered eFiled once the transmission is successfully completed. (Supreme Court Rule 10.2(6)). If the appeal is from a proceeding that was the subject of eFiling in the court-below, service of the Notice of Appeal should be done by using the eFiling system. In those instances in which a party is not capable of receiving on-line service through Lexis Nexis File & Serve, service should be accomplished in the traditional manner. (Note: it is possible to have Lexis Nexis File & Serve mail copies of filings to parties not capable of using the on-line service). All parties to the proceedings below, not just those against whom the appeal is taken, must be served with the Notice of Appeal. All parties to the action below (not just those parties against whom the appeal is taken) must also be served with a copy of the notice of appeal.
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Practice Pointers:
If you are eFiling an emergency application, let the Clerk know so that the
Court can expect the filing.
If you are granted a stay pending appeal, your client may be required to post surety, usually in the form of a supersedeas bond. In cases where a money judgment has been entered against your client, the supersedeas bond must be in an amount at least equal to the judgment. Del. Const. Art. IV, § 24. Most large local insurance brokers will be able to assist you in obtaining a supersedeas bond. Insurance companies usually require proof of your client’s ability to satisfy a judgment and sometimes require an irrevocable letter of credit from your client. Obtaining a supersedeas bond is therefore not always an “automatic” process.
V. ORDERING THE TRANSCRIPT
The record for the appeal consists of all papers and exhibits (including the trial transcript) filed with the trial court. Supreme Court Rule 9(a). To obtain the transcript for inclusion in the record, it must be ordered from the court reporter, which is accomplished by serving and filing a designation of transcript. Most practitioners include this designation in the notice of appeal, but the designation may be in a separate document (see Official Form C). The document designating the transcript must be served on all counsel and the court reporter. In addition to designating the transcript, it is the responsibility of counsel to make satisfactory arrangements to pay the cost of preparing the transcript. Failure to do so may result in the imposition of sanctions on counsel.
Supreme Court Rule 9(f), (l).
If the appellant does not designate the entire transcript, the appellee must, within 7 days, designate what additional transcript (if any) he desires to have prepared. Supreme Court Rule
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9(e)(ii). Appellee must also make arrangements with the court reporter to pay the cost of producing this additional transcript.
Practice Pointers:
You may sometimes be tempted to order less than the entire transcript in order to save your client unnecessary expense. That is often a false economy. As the brief writing progresses, it frequently becomes apparent that additional transcript is needed or would be useful. The Court takes a dim view of requests for extensions in briefing so that additional transcript can be prepared. It is therefore better to err on the side of ordering “too much” transcript.
When ordering the transcript, it is necessary to make appropriate arrangements with the court reporter to pay for it. Prudent counsel will confirm these arrangements in writing and will copy the clerk and opposing counsel with that letter. That will provide a record that you have fulfilled your obligation.
Having arranged to pay for the transcript, it is important that you honor your agreements. Questions of morals and ethics aside, you subject yourself to sanctions if you fail to pay the court reporter. Supreme Court Rule 9(h).
If you represent the appellant and order less than the entire transcript, it is wise (although not required) to promptly advise opposing counsel in writing what issues you intend to raise on appeal. That will assist opposing counsel in filing the mandatory counter- designation of transcript, and it will also make it difficult for the appellee to delay the appeal by claiming that he needs additional transcript after he sees your opening brief.
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If you have not already done so, obtain a copy of the docket sheet from the trial court before the record is transmitted to the Clerk’s office in Dover. That will be of immense help in preparing your brief and appendix.
VI. THE DISCLOSURE STATEMENT
Supreme Court Rule 7 requires the appellant to file a disclosure of corporate affiliations and financial interest within 10 days of the notice of the docketing of the appeal. The Statement should be filed concurrently with a motion seeking to expedite the proceedings. Although the
Rule is silent, the best practice is to file the Statement with any application for an interlocutory appeal. There is a continuing duty to file an amended form within 24 hours of any event that causes the original form to be incomplete or inaccurate.
The form of the Statement is set forth in Official Form P.
VII. MOTIONS
Motions play an important role in practice before the Supreme Court. Supreme Court
Rule 30 specifies the form and content of motions. A party opposing a motion must file an answer within 10 days; otherwise he is deemed to have consented to the motion. The moving party may file a reply within 7 days after receiving an answer. Unlike the filing of an answer, the filing of the reply is not required.
Each month a different Justice is designated as the “motion Justice.” Usually this assignment is systematically rotated among all five Justices in order of seniority. I.O.P. XV(2).
All newly filed motions are handled by the motion Justice unless he or she is disqualified in a
-11- RLF1-2781613-5 particular case. I.O.P. XV(3). Generally speaking, the non-dispositive motions, such as a request for an extension of time, are considered to be a “routine motion.” See I.O.P. XV(7).
Certain motions are considered by a three Justice panel. These motions include dispositive motions (such as a motion to dismiss), applications to accept an interlocutory appeal, motions for leave to participate as amicus curiae, and extraordinary writs. I.O.P. XV(8). If the case has not been assigned to a merits panel, the panel considering such a motion will usually consist of the motion Justices for the preceding, current and following month. I.O.P. XV(1).
This panel will not necessarily serve as the merits panel should the appeal proceed to the merits.
Ordinarily the Court does not conduct hearings on motions. However, if you have an emergency or a special problem it is appropriate to contact the Clerk or Court Administrator and request a conference with a Justice. I.O.P. XV(5). Generally there is no reargument of the grant or denial of a non-dispositive motion, since the Court does not permit motions for reargument or orders entered by a single Justice.
The Rules of the Court provide for summary affirmance through the filing of a motion to affirm within 10 days after the filing of the appellant’s brief. The grounds for that motion are specified in Supreme Court Rule 25(b).
Motions to dismiss for failure to file a timely notice of appeal must be made within 10 days of the filing of the notice of appeal. Supreme Court Rule 30(d). Other motions to dismiss must be made within 10 days of the filing of appellant’s brief or the act claimed to be the basis for dismissal. Id.
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Requests for extensions of time to file briefs are governed by Supreme Court Rule 15(b).
Use Official Form F for this motion. The Clerk is empowered to grant such requests when it is the first time an extension is sought by the party, the opponent consents and the requested extension is for 3 days or less. Should you find you will have difficulty meeting a briefing deadline, file a Rule 15(b) motion as early as possible, but not less than 5 days in advance of the due date. Supreme Court Rule 15(b)(iv). The Court is generous in granting timely requests for extensions, but it may sanction an attorney when such a request is untimely.
Requests to exceed the page limitations in briefs are made pursuant to Supreme Court
Rule 14(d). That Rule provides that “[t]he Court looks with disfavor upon motions to exceed the page limitation ....”
The appellant may dismiss an appeal at any time before the filing of the appellee’s brief.
After the filing of appellee’s brief, however, the appellant may dismiss its appeal only with the consent of the appellee. Absent such consent, the appeal must go forward. Whitfield v. State,
2006 Del. LEXIS 224 (Del. May 3, 2006).
Practice Pointers:
Except for dispositive motions (such as motions to dismiss and motions to affirm) counsel for the moving party should ascertain whether the nonmoving party will consent to the motion. The motion itself should, whenever possible, disclose whether it is agreed to or opposed.
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Always include a form of order with a motion (other than dispositive motions). Often a simple “So Ordered” with a blank signature line and space for the date at the bottom of the motion will suffice.
If it is necessary to request an extension to file a brief, be certain to ask for enough time to complete the brief. It is far better to ask for more time than you think is necessary than to pare your request to a minimum, only later to find you must ask for another extension.
If opposing counsel files a motion under Rule 15 or Rule 14, and you oppose that motion, you should act quickly. Supreme Court Rule 30(f) authorizes the Court to act on such request without waiting the usual 10 days for an answer. See also I.O.P. XV(5).
It is relatively uncommon for the Court to grant a motion to affirm in a civil appeal. This is not to say that such motions should never be filed in civil appeals, but before filing a motion carefully weigh your client’s chance for success against the cost and delay which will result from such a filing.
When drafting a motion keep in mind that the Court will usually know nothing about the case other than what is contained in the motion and answer. It is useful, therefore, to include sufficient background information about the appeal in your motion, to give the Court an understanding of what the matter is about.
The use of appropriate headings and subheadings in your motion (e.g.
“Background of this appeal”, “Why this appeal should be dismissed” etc.) will serve to organize your motion and make it easier to understand.
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It is advisable to attach supporting parts of the record to your motion.
Remember that the Justice or Justices ruling on your motion will not likely have ready access to the record when considering the motion.
VIII. THE BRIEF
It is beyond the scope of this program to attempt to teach effective appellate advocacy.
However, experience has shown that there are several fundamental principles that are frequently overlooked by counsel. These are discussed in the “Practice Pointers” below. The form and contents of brief are specified in Rule 14 and will not be repeated here.
Practice Pointers:
A. In General.
It is critical that the Court have confidence in the integrity of your brief.
To this end:
You must deal forthrightly with adverse
facts or legal authority. Putting aside the matter of
ethics, your failure to candidly deal with adverse
matters will be trumpeted loudly in your opponent’s
brief and at oral argument.
Be certain that the cases you cite actually
stand for the proposition you cite them for. You
can assume that the Court and your opponent will
read your authorities. An unjustified interpretation
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or application of a single authority will cast doubt
on the accuracy of your entire brief. In the same
vein, be certain that your factual assertions are
fairly supported by the record, and the citations to
the record actually support the assertions in your
brief. See Lehman Capital v. Lofland, No. 511,
2005 (Del. Aug. 25, 2006) (Slip. op. at 13, n.14)
(Noting that citation to appendix does not support
representation to the Court).
Be mindful that Del. Prof. Cond. R.
3.3(a)(2) requires a lawyer “to disclose to the
tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly
adverse to the position of the client and not
disclosed by opposing counsel.” Not only will you
comply with your ethical obligations, but also you
will gain the respect of the Court by doing so. In
Wilhelm v. Ryan appellee’s counsel brought to the
attention of the Court a Delaware case overlooked
by appellant. The Court had this to say:
We commend Ryan’s counsel for citing Jefferson despite the fact that it is contrary to his position. * * *
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Ryan’s counsel’s action conforms with the highest traditions of the Delaware Bar and is an example of the reason why Delaware remains a favorable environment for the practice of law.
(Wilhelm v. Ryan, No. 175,2005 (Del. July 18, 2006) (Slip op. at 9)).
Carefully check the subsequent history of all
cases you cite. Life has few moments more
embarrassing than being told by the Court or your
opponent that your principle authority has been
overruled.
Typographical errors often annoy the reader and detract from your brief.
At a minimum, they appear unprofessional.
Footnotes can sometimes be useful, but the reader must be able to understand your entire argument without reading them. Some successful appellate advocates recommend that footnotes be avoided altogether. The Rules expressly prohibit the use of footnotes to avoid the page limitation. Supreme Court Rule 14(d). Footnotes may not contain argument or advance claims of error. Murphy v. State, 632 A.2d 1150 (Del. 1993).
Lengthy quotations can often discourage any reader. Be certain that you have included in the quotation only that material which is necessary to support your point, to insure that your use of the quoted material will have maximum impact. On the other hand, it is a cardinal sin to omit material from a quotation that changes the meaning of what you have quoted in your brief.
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Pay attention to the visual appeal of your brief. Long paragraphs -- like long quotations -- can often discourage a reader. By the same token, a series of paragraphs of only one sentence each will appear “choppy” and make your brief difficult to follow.
The structure and organization of your brief is critical. Almost all successful brief writers prepare an outline before beginning the first draft. That avoids briefs which are nothing more than a collection of randomly stated thoughts that are never persuasive.
Liberal use of headings and subheadings in the brief helps to organize your brief and at the same time guide the reader. The inclusion of these headings and subheadings in the table of contents also provides a convenient outline of your entire argument.
Paragraph structure is important. We all learned early in our education that the first sentence of a paragraph must be a “topic sentence” for that paragraph. Yet it is amazing how often we forget this fundamental principle when writing briefs. Most good brief writers will tell you that someone ought to be able to understand a brief simply by reading the first sentence of each paragraph.
After your brief is completed, have someone who will be candid with you and who is unfamiliar with the case read your brief. If your reader struggles to understand your brief there is a strong possibility that the Justices will have a similar problem. If this occurs, swallow your pride and rework your brief.
Many brief writers read their briefs aloud before the final draft. We all have tendencies which such a reading will reveal. For example reading a brief aloud will often reveal the use of pet phrases that are repeated so frequently that they become tedious.
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B. The Statement of Facts.
Too often the Statement of Facts is written as an afterthought once the
Argument section of the brief has been completed. This is a mistake. An effective appellate advocate will always strive to convince the Court not only that the law supports his client, but also that his client deserves to win as a matter of fairness. The obvious place to accomplish this is in the Statement of Facts.
The Statement of Facts should be organized to tell a logical story. The use of headings and subheadings are not reserved for the Argument portion of a brief; they can be effectively used here also.
The Statement of Facts must be annotated to the record. That is usually accomplished by use of parentheses containing the citation to the record and the appropriate page of the appendix. It is often effective to also identify the witness or document in this citation to the record. For example, compare
The Jones’ automobile was traveling 45 miles per
hour when it struck the victim. (A-17; A-40). with
The Jones’ automobile was traveling 45 miles per
hour when it struck the victim. (Jones A-17;
Witness Smith A-40).
Be certain that the factual statements are supported by the record. The
Court always checks and will point out discrepancies between the Statement of Facts and the
-19- RLF1-2781613-5 record. Kurzmann v. State, 903 A.2d 702 (Del. 2006) (noting that appellant’s factual statements inconsistent with the record).
Leave out references to dates and times unless they are important.
Unnecessary references can cause the reader to attempt to keep track of them and prevent him from understanding the story you are trying to tell.
Strategic use of short, fair quotations from critical documents or testimony is often more compelling than a simple summary of that document or testimony.
C. Summary of Argument.
This is another opportunity to convince the Court of the validity of your client’s cause. Do not content yourself with simply repeating the headings to each of your arguments. Rather present a short narrative summary of your argument.
The appellee must specifically admit or deny the appellant’s summary.
Supreme Court Rule 14(b)(iv). It is permissible to admit in part and deny in part. A summary that only implicitly admits or denies an argument is not sufficient under the Rules, which require you to be specific. The only sure way to satisfy the requirement is to use the word “admitted” or
“denied” at the beginning of appellee’s Summary of Argument.
It is best to defer drafting the Summary of Argument until after the
Argument is completed. Although a brief writer should be able to write the Summary of
Argument first, the actual drafting of the Argument may result in a change of emphasis in the argument which should be reflected in the Summary of Argument.
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D. Argument.
Each argument in the appellant’s brief must contain three separately labeled parts:
. The first part “Question Presented,” must state the exact question or questions raised by the argument. This section must identify “with a clear and exact reference to the pages of the appendix” where the error was preserved in the court-below. In instances in which the appellant did not preserve the error in the trial court, he or she must explain in this part of the argument why the interests of justice exception found in Supreme
Court Rule 8 applies.
. In the “Scope of Review” section of each argument the appellant must set forth the scope of review applicable to the argument, e.g., de novo, abuse of discretion, etc.
. The third part of the argument is the “Merits.” Note that each new argument must begin on a separate page.
Do not take the “Standard and Scope of Review” for granted. It is a fundamental element of your argument and you must have the standard of review well in hand before you start drafting the argument section of your brief. Although most standards of review are well-established, the Court has developed new ones as circumstances require. For instance, in Fisher v. Board of Education of Christina School District, 856 A.2d 552 (Del. Aug. 16, 2004), the Court adopted a “modified de novo” standard of review to accommodate statutorily mandated features of review of administrative educational placement decisions, when those mandated features were “alien to ordinary judicial review of administrative action….” -21- RLF1-2781613-5
Many trial court decisions are matters of the trial court’s discretion. “In the absence of legal error, decisions that are entrusted to the discretion of a trial court are by their very nature exercised within a range of choices that may go either way.” Homestore Inc. v.
Tafeen, 2005 WL 1383348 (Del. June 8, 2005). In selecting arguments for appeal, think twice before asserting points that require a showing of abuse of discretion, because the standard is difficult to satisfy. It is necessary to show either (1) that the trial court ignored a factor to which it should have given significant weight; (2) gave significant weight to an irrelevant or improper factor; or (3) considered all proper factors and no improper factors but committed a “clear error of judgment” in the weighing process. Id.
Ordinarily appellants organize their brief with their best arguments appearing first. There are occasional legitimate reasons for departing from this practice. Usually this occurs when some chronological or logical arrangement is important. For example, if you are appealing both a finding of liability and the amount of damages, it makes little sense to place the damages argument first even though it may be your better argument.
Arguments must be presented with precision and with enough detail that the Court “does not have to do the work of counsel.” The Court has refused to consider an argument not expressly set out in the Summary of Argument and in the body of the Argument portion of the brief. Roca v. E.I. duPont de Nemours and Co., Inc., 842 A.2d 1238 (Del. 2004).
“Casual mention of an issue,” issues “adverted to in a perfunctory manner unaccompanied by some effort at developed argumentation” and “mention [of] a possible argument in the most skeletal way” in a brief are insufficient, and the Court will consider such contentions waived.
(Id. at 1242-43, quoting various cases).
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Appellants must be selective about the number of arguments presented.
Trial courts seldom commit multiple errors, and a large number of claims of error by an appellant will generally be viewed by the Court with a dubious eye. The inclusion of obviously unmeritorious arguments will only detract from those arguments that may have merit.
Appellants should be sure that the factual assertions in the reply brief are consistent with those in the opening brief. See Kurzmann v. State, 2006 Del. LEXIS 390, *29
(Del. July 13, 2006) (noting inconsistencies between opening and reply briefs).
The first paragraph of your argument should summarize the entire argument. This provides the reader with a necessary road map so that he can easily follow your argument. In all but the shortest argument descriptive headings such subheadings are extremely useful. These headings should be as descriptive as possible. For example, “The Due Process
Clause Requires Fair Notice of Conduct Prohibited by the Statute” is far better than “The Due
Process Clause.”
In many instances it is worthwhile to provide parenthetical explanations or quotations after a case citation. For example: Illinois v. City of Milwaukee, 406 U.S. 91 (1972)
(“[T]he remedies which Congress provides are not necessarily the only federal remedies available.”)
String citations are generally of little benefit. They are useless when used to support settled propositions that are not in dispute.
Usually only a handful of cases will form the core of an argument. These cases warrant discussion beyond a mere citation; otherwise, the reader likely will not grasp their
-23- RLF1-2781613-5 significance to your argument. However, you should be selective about these cases. Page after page of seemingly endless discussion of case holdings will do little to convince the Court.
Above all, when discussing an authority, be sure to relate it to the issues and facts in your case.
Avoid invective and ad hominem attacks even when they are warranted.
They are never convincing and may detract from your argument. If your opponent truly is a raving fool, the Court will not need you to tell it so.
Keep in mind that a brief is not a speech to a jury. Although your brief should be forceful, it should not be an appeal to the emotions of the Court. Constant reminders that your client was crippled by the accident will do nothing but insult the Court’s intelligence.
When writing an appellee’s brief keep in mind that your goal is to convince the Court that your client should win, not that the appellant should lose. This means that you should organize your brief so as to put your case in the best possible light. It should not simply be a point by point refutation of appellant’s arguments.
In the reply brief it is often useful to summarize the points that are not in dispute.
The Court will take a very dim view of any appellant who holds back and reserves an argument for his reply brief and thereby “sandbags” the appellee.
E. The Conclusion.
Although the Court’s Rules do not require a Conclusion, it is well advised to include one. Tell the Court exactly what relief you want in the Conclusion. For example if
-24- RLF1-2781613-5 you represent a defendant-appellant, do you want the judgment below reversed and the case dismissed or do you want the case remanded for a new trial?
F. The Order Or Opinion From Which The Appeal Is Taken.
The Rules provide that the order or opinion from which the appeal is taken must be attached to the brief. Previously this material was only required to be placed in the appendix.
IX. THE APPENDIX
Supreme Court Rule 14(e) sets forth the requirements of the appendix. Appellant’s appendix must include the relevant docket entries (the docket sheet you ordered before the record was sent to the Supreme Court is indispensable here). The pages of appellant’s appendix are numbered A- “ and the appellee’s appendix is paginated “B- .”
Practice Pointers:
The Rules permit a party to rely upon materials in the record even though not included in the appendix. Supreme Court Rule 14(e). It is a mistake to do so however.
Anything important enough to mention in the brief should be contained in the appendix.
The Court has a history of studying the appendix with care, and therefore you should assume the appendix will be read. This has practical ramifications in selecting the materials to be included. For example, assume you cited page 25 of the transcript in your brief for testimony found in the middle of that page. You will, of course, want to include that page in your appendix. Further assume that a question at the bottom of page 25 suggests it will reveal a
“smoking gun.” The answer, on page 26, however, reveals no smoking gun. You should include page 26 (even though not cited in your brief) because a member of the Court will likely become
-25- RLF1-2781613-5 curious when reading about the potential smoking gun on the bottom of page 25. Inclusion of the following page will eliminate any questions that may have been raised in the Court’s mind.
X. ORAL ARGUMENT
The Court deems an appeal to be at issue and ready for oral argument when the appellee’s brief is filed. Supreme Court Rule 16(c). There is no oral argument as a matter of right; rather the Court designates those matters in which it will bear oral argument. Supreme Court Rule
16(a). Oral argument is granted if one Justice assigned to the panel requests it. I.O.P. V(2).
Justices usually request oral argument when:
(a) the appeal presents a substantial or novel issue;
(b) the resolution of an issue in the appeal will be of precedential value;
(c) a Justice has questions;
(d) a decision or legislative act occurring after the filing of the last
brief may significantly bear on the case, or
(e) an important public policy issue is implicated.
I.O.P. V(4)(b).
If oral argument is allowed, each side will ordinarily be allowed 20 minutes. Supreme
Court Rule 16(f). In cases being argued en banc and in death penalty cases, the Court allows 25 minutes per side. I.O.P. V(3). It is permissible for two (but no more than two) attorneys to argue on behalf of a party at oral argument. Supreme Court Rule 16(e).
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Practice Pointers:
If you desire oral argument, file a request with the Court stating your reasons. These requests will be given consideration but, of course, are not binding. I.O.P.
V(1)(b).
Generally the Court does not allow amicus curiae to participate in oral argument even if a party to the appeal volunteers to relinquish all or part of its time to amicus.
The Supreme Court is a “hot bench.” If your case has been designated for oral argument, assume that the Court will have several questions. In preparing for oral argument keep in mind that your prepared argument should not last longer than 8 to 10 minutes. The
Court’s questions will likely consume the remaining time.
The Justices do not discuss the merits of cases before oral argument.
I.O.P. IV(2).
Your appearance and demeanor before the Court is important. Dress conservatively and conduct yourself with civility. Attempts at humor, use of slang and ad hominem attacks on your opponent have no place here. Remember too that your presentation should take on the form of a reasoned discussion with the Justices. Leave your theatrical ability for the jury.
If you represent the appellant, you must tell the courtroom clerk how much of your time (typically three to five minutes) you wish to reserve for rebuttal. The Court always breaks between arguments, so there will be time for you to do that. The courtroom clerk will, in turn, advise the panel how much time for rebuttal you desire.
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A series of green, yellow and red timing lights sits on top of the podium in the Supreme Court courtroom. When the yellow light comes on during the appellant’s opening argument, the appellant has used all of the time he or she allotted for the opening and is now using time he or she reserved for rebuttal. When the yellow light comes on during appellee’s argument, the appellee has two minutes left. Needless to say, when the red light comes on for either side, time has expired. The Court usually strictly enforces this time limit, but on occasion it has been known to extend the time if the Justices have asked an unusually large number of questions.
Listen to the Court’s questions carefully and answer what is being asked.
If you do not understand the question, tell the Justice your problem. Do not guess at what you think is being asked.
Speaking of guessing, do not guess at an answer. If you do not know the answer to a question be candid and offer to supply a written memorandum if the Court desires one.
When confronting a difficult question, counsel may be tempted to somehow avoid it. Resist such a temptation. Any attempt at evasion will be immediately spotted by the Court and you will quickly lose credibility.
Do not read your argument. The questions from the Court will quickly throw you off course. Most experienced appellate advocates have only a broad outline of the points they wish to make with them at the podium.
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Practice your argument out loud several times in advance. Although the
Court’s questions will likely keep you from reciting your argument exactly as you planned it, your practice sessions will help to give your argument a polished, professional quality and increase your confident level.
The appellee should listen carefully to the questions asked appellant.
Those questions will frequently disclose what the Court perceives as the weak points in appellant’s argument. A thoughtful advocate will use that as an opening to his argument on behalf of the appellee.
In unusual cases, you may want a transcript of the oral argument. The
Court records all oral arguments and posts that recording on its website the following day. If you desire a transcription of an oral argument, you may hire a court reporter to transcribe it directly from the website or request that a CD from the Clerk’s office be made available to the court reporter.
XI. THE COURT’S DISPOSITION OF THE APPEAL
Unlike most states, Delaware has no intermediate appellate court. Therefore, this state’s highest court does not have the luxury of discretionary review, but is obligated to accept a large number of appeals of right. Because of the large number of matters pending before it, the Court has disposed of the majority of them by orders, and generally reserves opinions for those matters that are likely to have precedential value. The Court explained the process in Halliburton v.
Highlands Insurance Group, Inc., 811 A.2d 277, 278-79 (Del. 2002):
The decision of the Court of Chancery, which we have adopted on the merits of the contractual dispute, marks no new advance
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in, or departure from, established Delaware law. To be sure, the outcome of the case may well affect the parties in a very significant economic manner. Many cases in the Delaware Courts, of course, have that effect. But that does not mean that this Court, as an appellate court, … [we]should rewrite in our words what a learned and very sophisticated trial judge has correctly written in his decision on the central issue in the case.
The Honorable Justice Henry du Pont Ridgely Supreme Court of Delaware 502 South State Street Dover, DE 19901
John A. Parkins, Jr. Richards, Layton & Finger , P.A. One Rodney Square 920 North King Street P.O. Box 551 Wilmington, DE 19899
September, 2007
Updated October, 2013 by The Honorable Justice Jack B. Jacobs Supreme Court of Delaware 820 N. French Street Wilmington, DE 19801
The thoughts expressed in this outline are not necessarily those of Justice Ridgely and Justice Jacobs, and this outline should not be cited as authority in any Court.
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TOP 10 KEYS FOR SUCCESS IN SUPREME COURT PRACTICE
1. A successful appeal begins in the trial court. It is difficult to succeed on appeal if a claim of error has not been preserved in the trial court. In order to preserve such a claim, the argument must be fairly presented to the trial judge. Casual mention of an objection, without explanation, or a passing reference in a brief usually do not suffice. If you plan to argue that evidence was improperly excluded, be sure you place an offer of proof on the record.
2. Read the Rules -- every time. Even if you are an experienced appellate practitioner, do not rely upon your recollection of the Rules. There are subtle differences between federal and state appellate practices which, if overlooked, can lead to disastrous consequences for your client.
3. Think first, appeal later. The Supreme Court’s appellate jurisdiction is limited to appeals from final judgments and, in civil cases, properly taken interlocutory appeals. Be sure, therefore, that the Court has jurisdiction to hear your appeal. It is surprising how often the
Court is forced to dismiss appeals for lack of jurisdiction.
4. When selecting issues for appeal, leave the shotgun at home and use the rifle.
Be selective in the number of arguments you present. In most cases two or perhaps three ought to be the maximum. Avoid the “throw it up against the wall and see if it sticks” strategy. Those eight mediocre arguments will detract from the one good one you had.
5. I didn’t have enough time to write a short brief. There are two lessons here.
First, it almost always takes longer to write a good brief than you think it will. Sure, you may have briefed the same issue in the trial court, but you still need to do a good deal of revamping in the Supreme Court. In the trial court you were writing in a vacuum; now you must explain why the trial court’s ruling was either correct or incorrect. This cannot be done in a day or two, so be sure to leave yourself enough time. The second lesson here is that not only is brevity the soul of
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wit, but also it is the basis of a good appellate brief. Avoid cluttering your arguments with extraneous verbiage, and keep in mind that arguments do not become more persuasive by repetition . When asked how long a brief should be, one jurist answered “long enough to educate me, but not long enough to bore me.”
6. Be civil. No matter how satisfying it might seem to write that your opponent is a blithering idiot, avoid the temptation at all costs. The judge who is impressed by ad hominem attacks is yet to be born. Instead, such attacks might alienate what would otherwise be a sympathetic Court. Never let it be said that your brief “shed more heat than light” on an issue.
7. Be accurate. Make certain that your citations to authorities and the record are accurate. It is difficult to win friends and influence people when a Justice cannot find a case simply because there is a typo in the citation.
8. Be honest. This goes without saying, but bears emphasis in any top 10 list.
Never cite a case or the record for a proposition it does not support. Chances are, you will lose the case; it is certain you will lose your reputation.
9. It is all about the standard of review. Before writing the merits of an argument, be sure you understand the standard of review and craft your argument accordingly. Your professional life will have few moments more difficult than discovering two hours before a brief is due that the standard of review for your previously “best” argument is abuse of discretion, not the de novo review you wrote about.
10. Oral argument is an intellectual conversation. Keep in mind that oral argument really is a conversation with three (or five) legal scholars seated not ten feet from you.
Leave the shouting and theatrics for the grandstand or the jury. Be sure to answer the questions directly. The bob and weave might be a good tactic for boxing, but it never works here. You may think you did a good job avoiding a question; the Justices will think otherwise.
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