“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.

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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.

723940.01-WILSR01A - MSW

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

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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

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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

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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

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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

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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

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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….”

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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

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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

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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

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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.

RLF1-3191588-1

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.