De Civil Procedure

Front 1

Acceptance of an interlocutory appeal is:

Back 1

Discretionary

Front 2

Procedure

Back 2

1. Party seeking appeal must file an application with the trial court (Chancery or Superior) within 10 days of the entry of the order from which appeal is sought
2. The opposing party responds within 10 days
3. Trial court certifies or refuses to certify within 10 days.
4. Thereafter, party seeking appeal must serve and file an appeal from the interlocutory order within 30 days after the trial court enters the order

Front 3

The Supreme Court will not accept an interlocutory appeal unless the order of the trial court:

Back 3

1. determines a substantial issue and
2. establishes a legal right and
3. meets one or more of the following criteria:

Front 4

One of more of following criteria

Back 4

1. any of the criteria applicable to proceedings for certification of questions set forth in Rule 41; or
2. the interlocutory order has sustained the controverted jurisdiction of trial court; or
3. an order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; or
4. a review of the interlocutory order may terminate the litigation or may otherwise serve considerations of justice

Front 5

Types of issues

Back 5

1. Discovery - absent special circumstances, the court will not accept interlocutory appeals on discovery orders
2. Court may accept appeal from interlocutory orders of Superior Court and Chancery acting as appellate court in review of a decision or order of a court or administrative agency.

Front 6

Pretrial Conference

Back 6

The Court may direct the parties to appear before it for a conference to consider the following matters:
1. Expediting disposition of the action
2. Establishing early and control so that the case will not protracted because of lack of management
3. Discouraging wasteful pretrial activity
4. Improving the quality of the trial through more thorough preparation, and
5. Facilitating Settlement of the Case

Front 7

The Court will enter a scheduling order that limits the time:

Back 7

1. to join other parties and amend the pleadings
2. to file and hear motions, such as SJ, Daubert, or in limine
3. to complete discovery
4. to engage in ADR

Front 8

ADR

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1. ADR may be binding or non-binding arbitration, mediation, or neutral assessment. Mediation is the default format if there is no agreement

Front 9

Intervention

Back 9

-voluntary joining the lawsuit - may be of right or permissive

Front 10

Intervention of right

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permitted to anyone where a statute confers an unconditional right to that person to intervene or where the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and the disposition of suit may as a practical matter, impair applicant's ability to protect that interest

Front 11

Intervention - Permissive

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allowed where a statute confers a conditional right to intervene or where the applicant's claim or defense and the main action have a question of law or fact in common
-the Court may in its discretion permit or deny it, and the Court must consider whether that intervention will unduly delay or prejudice the adjudication of the rights of the original parties

Front 12

Intervention - Procedure

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filing a motion

Front 13

Substitution of Parties

Back 13

A. Upon death where the claim is not extinguished, the party with the claim against the now-deceased must file a motion to get the proper party (e.g. executor) substituted within 90 days of a SUGGESTION OF DEATH upon the record. If such a motion is not filed, then the case may be dismissed at the end of the 90 days against the deceased party
B. Where a person becomes incompetent, the action may be continued against a representative of the party. The procedure is the same as though the party died in that a motion must be filed naming the party to be substituted. within 90 days of suggestion of incompetence

Front 14

PARTIES - Real Party in Interest

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Every action shall be brought in the name of the real party in interest
A. No action shall be dismissed on the grounds that it is not prosecuted by the real party interest without a reasonable opportunity to cure.
B. The Court shall appoint a guardian ad litem for an infant or incompetent

Front 15

Joinder of Claims

Back 15

A Plaintiff may include more than one cause of action against the same defendant