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Best Practices in Appellate Law

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Best Practices in Appellate Law “Substantive Best Practices” Best Practices in Appellate Law Click on any item to view associated materials 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. 723940.01-WILSR01A - MSW 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. -1- RLF1-2781613-5 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).
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