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Delaware Trial Practice Blog

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Superior Court Bench-Bar Program

Posted in Delaware Superior Court

The Superior Court recently enacted  Administrative Directive 2015-4.  This Directive amends and supersedes Administrative Directive 2011-5 regarding the Bench-Bar Program.  The Program provides for selected attorneys to act as intermediaries between the practitioners and the resident judge or appointed liaison judge in each of Delaware’s three counties. The communications between practicing attorneys and the liaison attorneys remain confidential unless the practitioner agrees otherwise.  Similarly, communications originating from the Court will be confidential among the practitioners involved.  The liaison judicial officers and liaison attorneys are:

New Castle County:  The Honorable Richard R. Cooch; Beth Christman, Esquire (Civil Liaison) and Thomas A. Foley, Esquire (Criminal Liaison).

Kent County:  The Honorable  William L. Witham, Jr.; Keith E. Donovan, Esquire (Civil Liaison) and Gregory A. Morris, Esquire (Criminal Liaison).

Sussex County:  The Honorable T. Henley Graves; Dennis L. Schrader, Esquire (Civil Liaison) and Thomas A. Pedersen, Esquire (Criminal Liaison).

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Superior Court Announces High School Internship Program

Posted in Uncategorized

The Court’s inaugural high school internship program will take place from July 13-July 17, 2015.  The week long internship program is designed to introduce high school students to the internal processes of the Delaware trial court system.  The program will provide students with access to the Superior Court, Chancery Court, Court of Common Pleas and Family Court. Participants will have an opportunity to observe court proceedings, meet judicial officers, and learn about our state court system. The Honorable Lynne M. Parker has been selected to serve as the coordinator of the internship program. 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

A Reminder of the Importance of Civility and Decorum

Posted in Uncategorized

The Court of Common Pleas adopted and publishes Standards for Attorneys’ Professionalism and Civility in a Courtroom Setting. Though published by one tribunal, in my experience the Standards expressed by the Court of Common Pleas are expected and appreciated in all of Delaware’s courts.

The Standards state:

Preamble

As officers of the Court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, opposing parties and their counsel, the courts, and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.

The Judges of the Court of Common Pleas have promulgated the following standards to foster a level of civility and professionalism.  The standards are offered because civility in the practice of law promotes both the effectiveness and the enjoyment of the practice of client representation. The legal profession must strive to uphold the honor and dignity of the profession to elevate and enhance our service to justice. Uncivil or unprofessional conduct not only disserves the individual involved, it demeans the profession as a whole and our system of justice.

Standards

These standards are applicable to all attorneys regardless of practice area, and are intended to complement the Delaware Principles of Professionalism for Delaware Attorneys adopted jointly by the Delaware State Bar Association and the Delaware Supreme Court on November 1, 2003.  All members of the bar are encouraged to comply with both the spirit and letter of the standards.

The Court endorses the concept of Civility set forth in the Delaware Principles of Professionalism for Delaware Attorneys.  That section provides:

Civility. Professional civility is conduct that shows respect not only for the courts and colleagues, but also for all people encountered in practice. Respect requires promptness in meeting appointments, consideration of the schedules and commitments of others, adherence to commitments whether made orally or in writing, promptness in returning telephone calls and responding to communications, and avoidance of verbal intemperance and personal attacks.

A lawyer should not communicate with a Court [ ] concerning pending or prospective litigation without reasonable notice whenever possible to all affected parties.

Respect for the Court requires:

  • careful preparation of matters to be presented;
  • clear, succinct, and candid oral and written communications;
  • acceptance of rulings of the Court, subject to appropriate review;
  • emotional self-control;
  • the absence of scorn and superiority in words or demeanor;
  • observance of local practice and custom as to the manner of addressing the Court;
  • [ ] appropriate dress in all Court proceedings; and
  • a lawyer should represent a client with vigor, dedication and commitment.  Such representation, however, does not justify conduct that unnecessarily delays matters, or is abusive, rude or disrespectful.  A lawyer should recognize that such conduct may be detrimental to a client’s interests and contrary to the administration of justice.

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Special Rules of Courtroom Decorum

  • An attorney should rise before addressing the Court.
  • An attorney should wait until the Judge or Commissioner has finished speaking before speaking.
  • An attorney shall address all remarks to the Court and not to opposing counsel or the opposing party.
  • An attorney should always introduce himself/herself at the time of first interaction with the Court.
  • An attorney should not leave the courtroom or turn his/her back to the Court when a recess is declared until the Judge or Commissioner has left the courtroom.
  • If an attorney expects to be late because of another court commitment, he/she should so inform the affected Judge, Commissioner or court staff as soon as practical.
  • An attorney shall seek the Court’s permission before approaching the bench.
  • As Court staff are an integral part of the justice system, attorneys should treat staff with courtesy and respect at all times.
  • An attorney will be considerate of the time constraints and pressures on the Court and Court staff in their efforts to administer justice.
  • An attorney should always face the bench while addressing the Court.
  • An attorney should begin with “May it please the Court” when making oral arguments, opening statements and closing arguments.
  • An attorney should not eat, chew gum or bring beverages (other than water provided by the Court) in a courtroom and should similarly advise witnesses.
  • An attorney should avoid inappropriate humor and gestures.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Superior Court Considers Simultaneous First Filed Actions

Posted in Uncategorized

In the case of Avaya, Inc. v. Charter Communications Holding Company, LLC, et al., the Delaware Superior Court considered a forum dispute between competing actions filed on the same day—one in Delaware and the other in New Jersey. The Delaware Plaintiff filed electronically at 12:01 a.m., while the New Jersey Plaintiff filed several hours later when the New Jersey Court opened.  The New Jersey Court initially dismissed its case, holding that the Delaware Action was first filed and that the parties could obtain adequate relief in Delaware.  However, the New Jersey Court subsequently reconsidered its decision and held that, under New Jersey law, the New Jersey Action was the first filed action.  Following the subsequent New Jersey ruling, the Delaware Defendant moved to dismiss or stay the Delaware action in favor of the New Jersey action.  Rather than undertaking a McWane analysis, the Delaware Court stayed the Delaware Action based upon the doctrine of comity, which applies when two courts have concurrent jurisdiction over the same matter:

The doctrine is not a legal rule but an expression of one state’s entirely voluntary decision to defer to the policy of another, especially in the face of a strong assertion of interest by the other jurisdiction.  A court may use its discretion to stay a matter if the same matter is pending in a different court  because a court should not assume to disturb another court’s disposition of a controversy unless there are good reasons for doing so.

In deciding to stay the Delaware Action, the Court found that the New Jersey Court has already decided that the New Jersey Action is the first filed action and that the matter should proceed in New Jersey.  Relying on recent Delaware Supreme Court precedent, the Court held that the doctrine of comity is important and courts should try to avoid issuing conflicting rulings on the same issue.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Adult Adoption In Delaware

Posted in Adoption, Delaware Family Court, Family Law

Many families are built or extended through adoption. Most people are familiar with the purpose and nature of adoption – the creation of a permanent parent/child relationship between a child and the adopting parent(s).  When a child is adopted he or she is thereafter considered the child of the adopting parent(s) and is entitled to the same rights and privileges as if he or she were born to the adopting parent(s).  This includes the right to inherit by or through the adoptive parents(s).

Most people think of this process or are familiar with adoption as it relates to infants or children.  What many people may not know is that Delaware law also provides for the adoption of a person 18 years of age or over – an adult adoption.  Just as with the adoption of a child, when the decree of adoption issues for a person over the age of  18 “all the duties, rights, privileges and obligations recognized by law between parent and child shall exist between the [adoptive parent(s)] and the person or persons adopted, as fully and to all intents and purposes as if such person or persons were the lawful and natural offspring or issue of the petitioner or petitioners.”  13 Del. C. §954.  An adult adoption may be appropriate in a number of situations.  For example, a person with a strong bond to the step-parent who helped to raise them may want and may choose to have that relationship formally recognized after they turn 18. In addition, and depending on the circumstances, the recognition of that parent/child relationship may also provide assistance in estate planning.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Amendment To Delaware Supreme Court Rule 42 Regarding Interlocutory Appeals

Posted in Delaware Supreme Court

The Delaware Supreme Court has amended Rule 42 regarding Interlocutory Appeals.  In fact, the Rule, Comment and Official Form L have been stricken in their entirety and a new Rule, Comment and Form adopted. The amendments, which may be viewed here, become effective May 15, 2015.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Finding of Dependency In An Alimony Analysis May Not Be Based on Speculation

Posted in Alimony, Delaware Family Court, Delaware Supreme Court, Family Law

The case of Smart v. Smart, Del. Supr. No. 433, 2014, April 6, 2015, presented several issues on appeal including a challenge to the Family Court’s determination that Ms. Smart is dependent and therefore entitled to alimony.

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The Trial

As the proponent of a claim for alimony it was Ms. Smart’s burden to prove her dependency – her inability to support herself through appropriate employment (or other resources).  At the hearing Ms. Smart was employed as a part-time sales clerk earning $9,000 per year.  In support of her claim for alimony, Ms. Smart testified that she suffered from chronic back pain due to a prior car accident.  She also testified that she had been diagnosed with PTSD and ADHD, though she was not treating these conditions due to the expense associated with treatment.  Ms. Smart did not provide any documentation regarding her diagnosis and she did not present the testimony of a medical professional.  When asked if her medical issues impacted her ability to work, Ms. Smart testified, “I don’t allow it to, no.  No, I go no matter what, so no it does not.”  Id. at 7.

Arguing against the claim, Mr. Smart testified that he was aware of her back issue, but did not know anything regarding the other diagnosis.  He asserted that Ms. Smart is capable of earning more than her part-time work provided.

Ultimately, the Family Court concluded that Ms. Smart was in fact dependent.  In reaching this conclusion, the Court found that, “While the testimony on [her] mental health was not as complete as it could have been, [the Family Court is] satisfied that [her] current untreated mental health issues are a factor in her not being able to be more gainfully employed.” Id. at 9.  Having found Ms. Smart to be dependent, the Court ordered Mr. Smart to pay alimony of $1,055 per month.

The Appeal

In his appeal to the Delaware Supreme Court, Ms. Smart argued the Family Court erred in finding Ms. Smart to be dependent because Ms. Smart did not meet her burden of proving that she is unable to maintain full-time employment.  The Supreme Court agreed that the evidence in the record was insufficient to support the Family Court’s finding.  Specifically, the Supreme Court held that “[a]n award of alimony may not be based on speculation or conjecture” and concluded that [a]lthough [Ms. Smart] may indeed be dependent on [Mr. Smart] for support, we find the Family Court’s conclusion that [Ms. Smart’s] ‘mental health issues pose an obstacle to her obtaining … full-time employment’ to be unsupported by the record.”  Id. at 11.  The case has been remanded to the Family Court for further proceedings.

The decision may be found here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

New Amendments To The Family Court Rules Of Civil Procedure

Posted in Civil Procedure, Delaware Family Court

The Family Court has amended the Rules of Civil Procedure.  Specifically, the Court has amended Rules 200 – 222 and 500 – 508.  Rules 200 – 222 relate to child dependency, neglect and or abuse proceedings; and Rules 500 – 508 related to the Delaware Child Support Formula.  The amendments became effective on April 20, 2015.

Family Court Seal

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Alimony Decision Remanded For Determination Of The Date Of Cohabitation

Posted in Alimony, Delaware Family Court, Delaware Supreme Court, Family Law

The case of Sullivan v. Sullivan, Del. Supr. No. 258, 2014, April 21, 2015, raised multiple issues on appeal.  Of particular interest was Mr. Sullivan’s request to receive credit for alimony payments made after Ms. Sullivan began cohabiting with her boyfriend.

30807004-alimony-word-in-white-3d-letters-on-a-ball-or-sphere-of-money-to-illustrate-financial-spousal-suppor[1]

Ms. Sullivan filed a motion for interim alimony in February 2012.  By order dated March 2012 Mr. Sullivan was required to pay monthly interim alimony payments commencing in April 2012.  In October 2012 Mr. Sullivan filed a motion to terminate this obligation alleging that Ms. Sullivan was cohabiting with her boyfriend.  In fact, he alleged that Ms. Sullivan began cohabiting before she filed the motion for interim relief.

The Family Court conducted a trial on Mr. Sullivan’s allegations and the issue of alimony.  In its decision, which issued on December 20, 2013, the Family Court concluded the evidence was “overwhelming that [Ms. Sullivan] began cohabiting . . . during the summer and fall of 2012.” Id. at 8. Despite that finding, the Court terminated alimony as of November 2, 2012, concluding that “the evidence clearly show[ed] that [Ms. Sullivan] was cohabiting by this point in time.” Id. at 9.  Mr. Sullivan appealed the decision challenging the termination date and the amount of credit due to him.

The Delaware Supreme Court agreed with Mr. Sullivan’s challenge and concluded that he “is entitled to credit for any alimony paid after [Ms. Sullivan] began cohabiting.”  Id.  The case was remanded to the Family Court to determine when during the summer of 2012 the cohabitation began, and to provide credit to Mr. Sullivan for any payments made after that date.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

2015 Bench and Bar Conference

Posted in Uncategorized

The 2015 Bench and Bar Conference will be held in Wilmington on Friday, May 15 at the Chase Center on the Riverfront (a registration form can be found here).  This Conference is an excellent opportunity for practitioners to interact with colleagues and the Bench in an informal environment.  The view from the Bench portion of the program will include a discussion with members of the Bench from all Delaware Courts addressing best practices, preferences, practical instruction, and pet peeves.  The view from the Bar will report preliminary results of the survey of members of the Bar about how the Courts operate and how the system could be improved (see previous posts on this Survey of the Bar here and here).  The results of this survey will be incorporated into a final report and recommendations to be presented to the Chief Justice and members of the Supreme Court later this year.  The Conference will end with a BBQ reception and an opportunity to socialize with members of the Bench and Bar.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.