De Civ Pro

Front 1

Purpose of the Delaware Rules of Civil Procedure?

Back 1

just, speedy, inexpensive determination of the dispute

Front 2

Superior Court - jurisdiction?

Back 2

A trial court of general jurisdiction (no $ required) and an intermediate appellate court.

Front 3

Supreior Court - hears appeals from?

Back 3

Court of Common Pleas
Justice of the Peace Court

Civil cases and some criminal cases.

Front 4

Jury Trial - Plaintiff files in Court of Common Pleas or Justice of the Peace Court?

Back 4

Plaintiff has waived jury trial.
If defendant wants a jury trial, then will be transferred to Superior Court.
Superior Court is the only court with subject matter jurisdiction to hear a jury trial case.

Front 5

Appeal from Justice of the Peace Court?

Back 5

Civil appeals to CCP with de novo review

Criminal appeals to Superior Court with de novo review

Front 6

Appeal from Court of Common Pleas?

Back 6

Appeal to Superior Court - appeal on the record (not de novo).

Front 7

Appeals from criminal cases in the family court?

Back 7

Appeal goes to the Superior Court on the record (not de novo).

Front 8

Appeals from Administrative Agencies?

Back 8

Appeal goes to Superior Court.

Front 9

Request for damages v. request for the court to force someone to do something or to require someone to not do something?

Back 9

legal remedy - superior court
equitable remedy - chancery court

Front 10

Appeals from Superior Court? Court of Chancery?

Back 10

Supreme Court

Front 11

Superior Court: Remedial Writs

Back 11

Writ of Certiorari
Writ of Prohibition
Writ of Mandamus
Writ of quo Warranto

Front 12

Federal Court?

Back 12

Complete diversity of citizenship and amount in controversey is $75k+
or
federal question

Front 13

Which Superior Court to file in?

Back 13

The one in which the cause of action arose. If you don't file in the Superior Court in the county in which the cause of action arose, it will still hear the case but you give up the right to costs.

Front 14

Writ of Certiorari

Back 14

Used to seek review of constitutionality of a decision of an inferior court or decision making body when there is no right of appeal.
Example: from a zoning board, or from a criminal sentence that doesn't exceed $100 or 30 days in jail

Front 15

Writ of Prohibition

Back 15

issued to inferior court to stop it from taking action outside its jurisdiction

Front 16

Writ of Mandamus

Back 16

used to compel performance of a public duty
example: used by prisoner to compel court to act on pending motion or to compel an agency to perform its functions

Front 17

Writ of Quo Warranto

Back 17

Issued against public officials or corporate official. Example: forces corporation to forfeit a corporate charter if the corporation does not comply with a writ of mandamus ("ouster of usurper")

Front 18

Method of filing in Superior Court?

Back 18

1. E-file a Complaint, Praecipe (provides the sheriff the name and address for service), and Case Information Statement

2. Provide Prothonotary with hard copies so the complaint can be served.

Front 19

Affidavit of Demand

Back 19

In causes of action for recovery based on written instruments, Plaintiff may make a demand on the fact of the complaint for defendant to respond by affidavit. Permits plaintiff to determine the disputed amount.
Plaintiff must file a copy of the instrument with the complaint.

If defendant fails to file an affidavit disputing the obligation, it's cause for judgment.

Front 20

What to file with the complaint in personal injury actions?

Back 20

(Form 30 Interrogatories)
1. Answers to specific limited interrogatories re: eyewitnesses, persons interviewed, photos, experts, insurance covereage.
2. Scanned copies of documents related to specific damages, tax returns if lost wage claim.
3. In turn, defendant is required to file interrogatories.

Front 21

Who does Service of Process?

Back 21

Sheriff serves summons, unless can show exigent circumstances that merit a special process server:
- Sheriff made one failed attempt
- Service must be after 10pm

- Service must be on weekend or holiday
- Other exigent circumstances

Front 22

DE Long Arm Statute

Back 22

If an out-of-state defendant is going to be sued in Delaware, plaintiff can serve process on that defendant:
1. by the same means as if he lived in Delaware (get a special process server), or
2. serve by means acceptable in that state, or
3. send by certified or registered letter
4. some other means approved by an order of the court (potentially to the defendant's DE attorney)

Front 23

What is process for service?

- Person
- Corporation
- Governmental Organization

Back 23

Person: service at the person's dwelling to someone over 18 (if defendant is under 18, then to guardian or adult at dwelling)

Corporation, Partnership, Association: officer, managing agent, or agent authorized to accept service (if DE corp, can serve their registered agent or the Secretary of State of Delaware if there is no registered agent); if not DE corp and no officers reside in state, can publish in newspaper in DE and in other state

Governmental Organization: chief executive officer and also either Atty General, Chief Deputy Atty General, or State Soliciter

Front 24

How long do you have to serve process?

Back 24

120 days from time complaint filed.

Court may extend if show good cause why couldn't serve within the 120 day period.

Front 25

Minimum Contacts Requirement?

Back 25

Out of state defendant must have sufficient minimum contacts to be sued in Delaware:

- conducts business in state

- contracts to supply services or items in state

- causes tort in state by act in state

- causes tort in state by act out of state if regularly engages in business or activity in state

- insures within state

Front 26

Who do you serve with papers other than the complaint?

Back 26

Everyone in the case.

You must be able to establish you have served the other parties - counsel must certify he has done so.

You can file notice you served interrogatories on others - you don't have to file copies of the interrogatories.

Front 27

File a document under seal?

Back 27

Yes, it can be done.

Front 28

Appearance of an attorney?

Back 28

Attorney must enter appearance. The closer to trial, the less likely you will be allowed to withdraw.

Front 29

Calculation of time?
What if serving by mail?

Back 29

Don't count the first day. Do count the last day.

Add 3 days if you are serving by mail.

If more than 11 days, include weekends and holidays.

Front 30

Notice pleading state?
Types of pleadings?

Back 30

Only need to put enough information in a complaint to give the other party notice.

Complaint - State your facts and state what you want (doesn't need to be that detailed).

Answer - short and concise. ("admit" "deny" or "need more information"). Failure to deny may be deemed admittal.

Others: Reply to Counterclaim, Answer to Crossclaim, Third Party Complaint, Third Party Answer

Affirmative Defenses must be set forth in the answer to the complaint.

Front 31

Affirmative Defenses? What are they?

Back 31

Must be set forth in the answer to the complaint or you forfeit them; Defendant has burden of proof

Accord & Satisfaction

Arbitration & Award

Assumption of Risk

Comparative Negligence

Discharge & Bankruptcy

Duress

Estoppel

Failure of Consideration

Fraud

Illegality

Injury by a fellow servant

License

Payment

Release

Res judicata

Statute of Frauds

Statute of Limitations

Waiver

Front 32

Special Matters to be Plead?

Back 32

Fraud
Negligence
Mistake

must be plead with the circumstances, being stated with particularity (unlike Federal Rule)

Front 33

Claim for unliquidated damages?
Claim for special damages?

Back 33

unliquidated damages - plead generally (don't specify the dollar amount)

special damages - may plead with specificity (may include specific $ amount)

Front 34

Signing of Pleadings?
Sanctions?

Back 34

When signing a pleading, you are certifying that you have read them and they are well-grounded in fact and are legally appropriate. If signed in violation of the rule, Court may impose sanctions.

Front 35

Can you incorporate documents by reference into your pleading?

Which denials require affidavits?

Back 35

Yes: once you attach it to the pleading, it becomes part of the pleading.

- existence of partnership or corporation

- signature on document on which action is brought

- agency of the operator of a motor vehicle

- action on books and records, where an affidavit of demand has been filed

Front 36

Time to respond to a complaint? (answer OR motion to dismiss)

Back 36

20 days (except US Gov't has 60 days)

Front 37

Motion to dismiss (Rule 12)
v.
Motion for Summary Judgment (Rule 56)

Back 37

Motion to dismiss: challenges the sufficiency of the complaint (assume all facts true, they still haven't made a legal claim they can recover on)

Motion for summary judgment: requests dismissal based on all evidence (consider all the evidence in the case - we believe there are undisputed facts in the evidence that compel judgment in our favor)

Front 38

Effect of extraneous document attached to complaint on motion to dismiss?

Back 38

The extraneous documents are incorporated into the complaint and so it is still a rule 12 motion to dismiss.

However, if matters not in the pleadings are to be considered in determining the motion, then the motion is treated as a Rule 56 motion to dismiss.

Front 39

What defenses must be raised in your answer? (or waived?)

Back 39

personal jurisdiction
venue
insufficient process
insufficient service of process

Other defenses you can raise under rule 12:
lack of subject matter jurisdiction
failure to state a claim upon which relief can be granted
failure to join a party
(these can also be raised later)

All these may also be raised in a Rule 12 Motion to Dismiss.

Front 40

Motions to Dismiss on Subject Matter Jurisdiction Grounds?

Back 40

Pursuant to DE statute, if the Superior Court lacks subject matter jurisdiction over an issue, it can transfer the case to the Court of Chancery instead of dismissing it.

Front 41

What if a set of facts gives rise to legal claims and equitable claims?

Back 41

Two options:

1) CLEAN UP DOCTRINE if the main claim is equity, then you can go into Chancery Court and the Chancery Court can exercise over both the legal and equitable claims ("the clean up doctrine") - note you give up right to jury trial

2) file in Chancery for the equity claim, file in Superior Court to get a jury trial on your law claim

Front 42

Documents that can be attached to the complaint?

Back 42

only documents that are core to the dispute

Front 43

Compulsory Counterclaims v. Permissive Counterclaims?

Back 43

Compulsory Counterclaims must be brought; Permissive counterclaims you can get permission to bring in the court's discretion.

A compulsory counterclaim is any claim which the pleading party has against any opposing party which arises out of the same incident or occurrence and which does not require the presence of third parties over whom the Court does not have jurisdiction.

Permissive counterclaims don't arise out of the same transaction or occurrence.

Front 44

Indemnification v. Contribution?

Back 44

Indemnification - a contractual obligation

Contribution - a joint tortfeasor obligation

Front 45

Cross-claims / third party claim?

Back 45

Cross-claims: any claim against a co-party arising from the same transaction or occurrence

Third-party claims: claims against a non-party who is or may be liable for all or party of the plaintiff's claim against the defendant

Front 46

Amending a pleading?

Back 46

A party may amend its pleading once at any time before a responsive pleading if filed.

A party may amend his pleading once within the 20 days of the service of his original pleading.

Then, a party may amend pleading by leave of court, which will be liberally given.

Front 47

Amended Pleading and SOL?

Back 47

"Relation back" issue -
Plaintiff filed just inside the SOL. Then, later wants to amend complaint to add new claims or a new party:

an amendment to a pleading relates back to the initial filing (SOL), if:
1. It arose out of the original conduct set forth in the initial pleading or

2. The amendment changes the party (or party name) against whom the claim is asserted if 1 above is satisfied and, w/in 120 days of filing the party to be brought in:
- has received notice of the institution of the action such they the party won't be prejudiced in maintaining a defense on the merits and
- knew or should have known that the action would have been brought against them but for a mistake

Front 48

Pretrial Conferences (Rule 16)

Back 48

Initial Conference: The conduct of the trial, including:

- consider expediting disposition of the action

- establishing early control of the case for effeciency

- discouraging wasteful pretrial activities

- improving the quality of the trial through more preparation

- facilitating settlement

Front 49

Scheduling Order

Back 49

The court will enter a scheduling order that limits the time to:

- join other parties and amend pleadings
- file and hear motions such as summary judgment, Daubert, in limine
- complete discovery
- engage in compulsory ADR

Front 50

Alternative Dispute Resolution (ADR)

Back 50

compulsory for all civil cases - this will be scheduled in the first pre-trial conference

Mediation is the default method of ADR. Parties should select mediator or court will appoint after 30 days

If parties choose not to mediate, then can arbirtrate (mini-trial) or get a neutral case assessment (paper hearing)

Exempt actions: class actions, real property, habeas, extraordinary writs

Front 51

Compulsory and Permissive Joinder?

Back 51

Compulsory - without that party, no complete relief can be given in the case OR if that party isn't in the case their rights will be irreparably impaired

Permissive - discretionary for the court; will be permitted as long as bringing in the new party won't cause prejudice or delay

NOTE: action not dismissed for mis- or nonjoinder of parties – Court may drop, add, or sever claims at its discretion.

Front 52

Interpleader

Back 52

allows insurance co. to deposit the max payout into an account and walkaway - then the plaintiffs can fight over who gets what % of it

Front 53

Class Actions

Back 53

Do the claims meet the criteria, including is the plaintiff a good representative of the class?

Numerous members
Common questions of law or fact
typical claims or defenses
representatives fairly protect class

AND 1 of the following:

- separate action create risk of inconsistent judgments or prejudice

- party opposing the class has acted or refused to act appropriately for all

- common questions of law or fact predominate over individual issues and class action superior

Front 54

Intervention?

Back 54

A non-party who seeks to be joined. May be of right (by statute) or by permission

File a motion to intervene.

Front 55

Substitution of Parties?

Back 55

substitute party when someone dies or becomes incompetent

the plaintiff must file a SUGGESTION OF DEATH within 90 days of defendant's death and move to substitute; otherwise, case can be dismissed (and malpractice suit)

Front 56

What information can you ask for in discovery? (standard)

Back 56

Is the request reasonably calculated to lead to admissible evidence. (a lower threshold than evidence)

Front 57

Limits to discovery?

Back 57

Discovery can be limited based on burden and expense.
(reference the purpose of the rules)

You can file a motion for a protective order if served with discovery requests that are too burdensome or expensive. Also can object to a discovery request becaues:
-attorney client privilage
-unavailable
-attorney work product (investigatory v. mental impressions, opinions and conclusions)

Front 58

Discovery and Experts?

Back 58

Must disclose experts who will testify (but not those who won't), including the subject matter and substance of the facts and opinions to which they are expected to testify and a summary of the grounds for each opinion

Experts who will NOT testify:
1) will only need to disclose upon showing by other party of exceptional circumstances such that they couldn't get information about the subject in any other way or
2) report of examining doctor or psychologist is discoverable even if not testifying at trial

Front 59

Discovery - duty to supplement

Back 59

If made complete responses, NO duty to supplement EXCEPT FOR:

- Discovery requests for identity and location of persons with discoverable knowledge and expert witnesses

- Responses incorrect when made or which have ceased to be correct

Front 60

Work product doctrine?

Back 60

Work product of lawyers and their agents prepared in anticipation of litigation may be discovered ONLY if other party shows substantial need and undue hardship in accessing the materials via other means.

BUT attorney's mental impressions, opinions and conclusions are NOT discoverable

Front 61

How to determine if work product was prepared in anticipation of litigation?

Back 61

Court considers these factors:

- nature of event and whether likely to lead to litigation

- materials contain legal analysis or purely factual contents

- whether material was requested or prepared by party

- whether material was routinely prepared

- timing of preparation and whether discussions or negotiations had occurred at that time

Front 62

Who can you depose?

Back 62

**Usually done after interrogatories / requests

You can dispose anyone w/out leave of court except someone in prison.

Must give notice to the party of date, time, and method it will be recorded.

Front 63

Deposition from a corporation, but don't know who you need to talk to?

Back 63

Rule 30 allows you to issue a notice to the corporate defendant, who must designate the person authorized to testify on that point.

Front 64

Objections at deposition?

Back 64

All objections must be made at the time of deposition in order to be preserved.

State the objection, state the basis.

Attorneys may not attempt to counsel a witness via his objections.

Front 65

Deposition - When can you instruct the witness not to answer the question?

Back 65

1) if privileged
2) question is becoming burdensome or harassing

Then, seek an opinion from a judge over the phone.

Front 66

May attorneys counsel their client during the deposition?

Back 66

No - other than the two times they can instruct the client not to answer the question.

BUT if recess or continuance lasts more than 5 days, they may consult.

Front 67

Can you use the deposition at trial?

Back 67

Unavailability:
if unavailable and if everyone had a chance to question at the deposition

Party Witness:
Can use deposition of a party to the case at trial (don't need unavailability).

Non-party witness:
can use deposition to impeach.

Front 68

Written interrogatories?

Back 68

**Party-to-Party only**

Plaintiff - can issue to plaintiff at any time
Other Parties - only after they have been served with summons and a complaint

30 days to answer unless extension of time granted (get extra 15 days if served with complaint)
May reply by saying 'refer to documents'

Front 69

Production of documents?

Back 69

**Party-to-Party only**

Must have reasonable degree of particularity.

May reply by saying 'refer to documents'

NO DE e-discovery rules yet

Front 70

Request for inspection?

Back 70

**Party-to-Party only**

can request to inspect land, equipment at issue

Front 71

Discovery requests - particularity?

Back 71

other party shouldn't have to guess what the request means

Front 72

Request for physical exams?

Back 72

**Party-to-Party only**

if physical or mental condition of party is at issue, then for GOOD CAUSE SHOWN, court can order an exam

party examined entitled to a copy of the report or deposition on request

Front 73

Requests for Admission?

Back 73

**Party-to-Party only**

In order to scale down the issues in dispute at trial, can ask for admissions

Party must respond:
- admit
- deny
- unable to admit or deny

- within 30 days (45 if served with complaint) or deemed admitted for this case only

If you deny and the opposing party disproves, you can get extra costs. If you admit, can be used at evidence. (responses can be used at trial)

Front 74

Failure to make discovery?

Back 74

**Party-to-Party only**

Get a motion to compel from the court. Must show you requested discovery and the party failed to respond. After a hearing, judge can order party who did not respond to pay opposing side's costs and attorneys fees of opposing the motion.

If party repeatedly doesn't comply with discovery requests, then can request case be dismissed.

Front 75

How to get a jury trial?

Back 75

Any party has ABSOLUTE RIGHT to jury trial, but must perfect by:

- Demand on face of complaint or within 10 days of answer filing, or WAIVE

- Demand 12 jurors or will default to 6

Front 76

When can Court dismiss actions sua sponte for non-substantive issues?

Back 76

- Failure to diligently prosecute the action or comply with rules, statutes (15 days notice to show cause or dismissed)
- No proceedings in action pending for more than 6 months (30 days notice before dismissal)

- Fails to invoke Court's jurisdiction (no notice required)

- Bankruptcies stay action for up to 24 months and good cause extensions

Front 77

Subpoenas?

Back 77

Prothonotary gives forms to attorneys, who complete and issue to non-parties to get information

Can ask for testimony or documents duces tecum

Front 78

Who conducts the voir dire?

Back 78

The Court.

Attorneys may submit written questions to the Court in advance.

Front 79

Peremptory challenges?

Back 79

Each party gets 3 peremptory challenges – when alternate jurors are impaneled, the attorneys get additional pereptory challenges (1 for 2)

BUT can't challenge for discriminatory reason (race, gender, age), per Batson

Front 80

Unanimous jury? No. of jurors?

Back 80

Unanimous verdict unless the parties agree otherwise.

Parties can stipulate to a number less than 12 jurors.

Front 81

Special verdicts?

Jury Instructions?

Back 81

You can ask the jury special questions for them to answer.

If inconsistencies in answers, judge may send jurors back or further consideration or order a new trial.

Court instructs jury before or after summation. Party must object to instruction at latest immediately after jury sent to deliberate.

Front 82

Motion for judgment as a matter of law?

Back 82

In-trial equivalent to SJ (replaces directed verdict)

File once party has been fully heard on an issue and NO LEGALLY SUFFICIENT EVIDENTIARY BASIS for a reasonable jury to find for that party

Evidence viewed in light most favorable to non-moving party

If denied, may renew as Motion for Judgment after Trial w/in 10 days after judgment

If granted, other party has 10 days to move for new trial

These post-trial motions stop the appeals clock

Front 83

Default Judgment?

Back 83

Plaintiff can seek if defendant does not reply w/in 20 days. If it is not for a fixed amount of money, will need an inquisition hearing for plaintiff to present its evidence on damages so court can determine damages.

Front 84

Motion for Summary Judgment?

Back 84

Must wait until 20 days after commencement of trial and preferrably after discovery.

Standard: Based on all the evidence, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law

If motion is denied, it's an INTERLOCUTORY order, not final, so can't take a direct appeal to Supreme Court

If motion is granted, then direct appeal available

Front 85

Declaratory Judgment?

Back 85

Asks judge to declare the rights of the parties.

Does not waive right to a jury trial

Must have a disputed controversey

Classic example: interpretation of a contract

Front 86

What post-trial motions are available in Superior Court?

Back 86

Verdict override only available if against the great weight of the evidence (i.e., "shocks the conscience" of the Court)

Motion for New Trial – w/in 10 days after judgment or verdict; other party has 10 days to answer

Motion to Alter or Amend Judgment – 10 days

Motion for Reargument – 5 days

Motion for New Trial on After-Discovered Evidence (must not have been discoverable before, material, substantive)

Motion for Relief from Judgment - mistake; new evidence; fraud; judgment void, satisfied or discharged; any other justified reason.

In addition to being allowed to file a motion for a new trial, can file a motion for reargument w/in 5 days. If granted, do not just redo same arguments. Instead, explain why the judge's decision was wrong or what facts were misstated, etc.

Front 87

Clerical mistake judgment?

Back 87

Can be rectified by the court at any time, can ask for relief from at any time

Front 88

Offer of judgment?

Back 88

At any time more than 10 days before the trial, a defendant may serve the plaintiff an offer to have judgment entered against them for a certain amount to end the case.

If not accepted, it's deemed withdrawn.

If the judgment obtained is not more favorable than the offer, the plaintiff must pay the costs incurred after the making of the offer.

Front 89

Appeals to the Superior Court?

Back 89

Appeal on record - no new testimony, evidence, etc.

Front 90

Time for appeal TO the Superior Court?

Back 90

15 days from the final decision of the board/court/agency unless a statute says otherwise

Front 91

Admission pro hac vice?

Back 91

Admitted if:

- Sponsored by DE counsel

- DE counsel signs service and attends proceedings

- Responsbility with DE counsel

Also, out-of-state att'y must certify:

- In good standing with state bar

- Bound by DE's rules of professional conduct

- Will follows Court's rules

- Consents to Prothonotary as agent for process serving

- Reveal # of times admitted in DE during last 12 months (to guard against end runs around bar admission)

- $300 annual fee

Front 92

Settlement on tort claims for diabled person?

Back 92

Superior Court can enter an order:

- approving settlement

- approving disbursement of funds

- appointing a guardian of the property of a disabled person to be derived from settlement

- approving the deposit of a disabled person's funds in a bank or trust co

Can transfer to Chancery Court for administration of guardianship

Front 93

Can Supreme Court select what cases it hears?

Back 93

Not really. There is an absolute right to appeal, assuming the judgment of the court below is a final judgment.

BUT there is not an absolute right to appeal for interlocutory (non-final) judgments

Front 94

What courts does Supreme Court hear appeals from?

Back 94

1) Family Court - Civil determinations (custody, visitation, divorce)
2) Chancery Court
3) Civil matters from Superior Court
4) All criminal appeals where sentence is death, imprisonment over a month, or fine over $100

Front 95

Which extraordinary Writs can the Supreme Court issue?

Back 95

- Prohibition

- Quo warranto

- Certiorari

- Mandamus

- Any others to any other court in the state

NOTE Court has original jurisdiction for these

Front 96

Supreme Court - discretionary appeals?

Back 96

Interlocutory appeals - appeals from non-final orders

Front 97

Supreme Court - certified questions of law

Back 97

Supreme Court may, if it chooses, answer certified questions of law from federal courts, state trial courts, and the SEC

Front 98

Supreme Court - Advisory Opinions

Back 98

Discretionary
At request of governor or majority of either house of legislature

Front 99

Supreme Court – # of judges who hear case?

Back 99

3 judge panel or
en banc if reasonable likelihood to overrule precedent; panel not unanimous; or if new matter

Court can decide to hear en banc on its own or can be requested to hear on motion.

Front 100

Timing of appeals to Supreme Court?

Back 100

Civil final order – 30 days

Criminal sentence – 30 days

Post-conviction relief – 30 days

Cross-appeal – 15 addt'l days for civil, 30 addt'l days for criminal

Front 101

Computation of time for Supreme Court?

Back 101

- Day of act not included

- Last day included unless weekend or holiday

- Count weekends and holidays if more than 7 days

- When by mail, add 3 days

NOTE: Time may NOT be enlarged

Front 102

How to file appeal in Supreme Court?

Back 102

File a notice of an appeal and attach decision being appealed, designation of transript, what parts of the record below you want transfered up to the court on appeal. Notice of appeal must substantially conform to the court's form (or can be rejected).

Cross-appeals must meet the same requirements.

Front 103

What can be raised on Supreme Court appeal?

Back 103

Issues fairly presented to the court below.

If you don't show this, the only way the Supreme Court will overturn a decision on that issue is to show plain error (practically impossible to meet).

YOUR BRIEF MUST CLEARLY INDICATE WHERE IN THE RECORD THE ISSUE WAS PRESERVED; I.E. WHERE THE ISSUE WAS FAIRLY PRESENTED TO THE COURT BELOW.

Front 104

For Supreme Court review, what does the record below consist of?

Back 104

Evidence, testimony presented to court
motion, motion papers, exhibits, transcript from hearing on motion, trial transcript (you can designate just the portion of your transcript you believe represents your issue on appeal)

Prothonotary must organize and transmit the record to the Supreme Court.

Front 105

E-filing in Supreme Court?

Back 105

If the case was subject to efiling in the lower court, then is subject to efiling in supreme court

Front 106

Attorneys of record in Supreme Court?

Back 106

Doesn't carry over from action below

- person who filed

- DE counsel must sign all pleadings

- new motions for pro hac vice

Front 107

Oral argument in Supreme Court?

Back 107

- discretionary
- if granted, 20 minutes on a 3 justice panel and 25 minutes to en banc panel unless you make a motion to extend the time and it's granted (very rarely granted)

Front 108

How will the Supreme Court decision be issued?

Back 108

Final decision will be written (no oral rulings)

Front 109

Supreme Court: reargument?

Back 109

very rarely granted

Must request w/in 15 days unless court allows for longer time.

May also file motion for re-hearing en banc (most show it qualifies to be heard en banc).

Can file both motions simultaneously.

Won't get for interlocutory appeals or on motions a single justice can decide (like to extend time).

Front 110

Supreme Court: motions to affirm and affirmance?

Back 110

Both allow you to seek expedited resolution of the appeal.

Motion to Affirm - filed w/in 10 days after apellee receives the appellant brief. Is filed in lieu of an answering brief. It suspends the briefing schedule. Argues that it is manifest from the opening brief that:

1) the matter is clearly controlled by settled law, or
2) isue on appeal is highly factual and there is sufficient evidence to support the jury's finding or
3) the issue on appeal is one of judicial discretion and judge clearly did not abuse discretion

If you lose on this motion, you have 20 days to file your brief.

Affirmance - Supreme Court on its own (sua sponte) can enter an order or opinion affirming the judgment or order of the trial court. Grounds are the same as motion for affirm.

Front 111

Supreme Court - dismissal of appeal?

Back 111

Appeal may be voluntarily dismissed by appellant before appellee files brief, otherwise may only be dismissed by stipulation and court approval.

Court can also dismiss on its own, including because of lack of jurisdiction – including because of failure to timely affect and appeal.

Front 112

Supreme Court - appeal not timely filed?

Back 112

this is a jurisdictional issue = Supreme Court doesn't have jurisdiction to hear the appeal

Front 113

Supreme Court - Certification of Questions of Law?

Back 113

Court, at request of party or sua sponte may certify question of law to Supreme Court.

Who may certify: an Art III court, any DE court, SEC, any highest state court

Supreme Court will accept when there exists important and urgent reason for immediate determination of the questions certified. Won't be accepted if there are material facts in dispute.

Acceptance by Supreme Court is discretionary.

Examples: questions of law in the first instance, conflict of opinion in trial courts, constitutionality or construction of a statute which has not been settled

Front 114

Supreme Court - Interlocutory Appeals, procedure?

Back 114

(Usually denial of summary judgment)

1. w/in 10 days of entry of the order from which the appeal is sought, party must file an application with the trial court for the interlocutory appeal (Chancery or Superior)

2. opposing party responds w/in 10 days

3. trial court certifies or refuses to certify w/in 10 days (Supreme Court NOT bound by this reccomendation)

4. party seeking appeal must serve and file an appeal from the interlocutory order w/in 30 days after trial court enters the order

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Supreme Court - grounds for accepting an interlocutory appeal?

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Trial court order must:

- determine a substantial issue; AND

- establish a legal right; AND

- meet at least one of the following:
1) any criteria for certifying questions of law
2) interlocutory appeal sustained the controverted jurisdiction of the trial court
3) might terminate the litigation or otherwise serve considerations of justice

NOTE:

- Discovery orders almost never accepted

- Denial of SJ rarely accepted

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Jurisdiction of the Court of Common Pleas?

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Exclusive: change of name petition (except resumption of name associated w/ divorce preceeding)

Concurrent / Civil: where amt in controversey does not exceed $50k (unlimited counterclaims) (concurrent jurisdiction w/ superior court)

Concurrent / Criminal: for all motor vehicle violations and misdemeanors

Jury trials: Only available for criminal cases

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Jurisdiction - Justice of the Peace Court?

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Exclusive over landlord–tenant cases

Civil - may not exceed $15k (unlimited counterclaims)

Criminal - criminal solicitation, conspiracy in third degree, offensive touching, menacing, unlawful use of credit card, many other weak crimes (exclusive)

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Alderman's Court?

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town court

public intoxication, traffic offenses, town ordinances

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Clean-Up Doctrine

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Chancery Court can address legal claims when providing equitable relief BUT claim in equity must form basis of action – can't shoehorn legal issue in

Superior Court CAN'T do vice versa

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Superior Court – Specific Jurisdiction

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Remedial Writs

Proceedings for Condemnation

Medical Malpractice

Involuntary Mental Commitments

Habeas Corpus

Mechanics Liens

Criminal Jurisdiction – felonies and drugs (except pot)

Appeals from Admin agencies

Wiretaps

Settlements for Minors and Disabled Persons

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Every action shall be brought in the name of the

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Real Party in Interest

- no agents

- guardian appointed for minors/incompetents

- BUT NO dismissal for failure to do so, without reasoable opportunty to cure

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Joinder of Claims

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A plaintiff may bring more than one cause of action against the same defendant

(bring all claims at once)

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Deposition far away?

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If more than 150 miles from the courthouse, the Court may order the party seeking the deposition pay the expense of the attendance of one attorney for the adversary party, including attorneys fees.

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Supreme Court standards of review?

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- Evidentiary & Discovery issues below: Abuse of Discretion standard

- Fact decisions: Clearly Erroneous standard

- Law issues: De novo review

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Grounds for accepting Supreme Court Motion for Rehearing en Banc?

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- question of exceptional importance

- en banc necessary to secure or maintain uniformity in Supreme Court decisions

- prior decision should be reconsidered for overrule or modification

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Supreme Court death penalty review?

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Automatic and mandatory

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Supreme Court – effect of interlocutory appeal?

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- No automatic stay of trial below

- Orders not subject to reargument