Meeting the Expectations of the Court Court of Common Pleas

Transcription

1 Meeting the Expectations of the Court Court of Common Pleas Click on any item to view associated materials Biographies of Speakers The Honorable Alex J. Smalls, Chief Judge, Court of Common Pleas Thomas A. Foley, Esquire, Thomas A. Foley, Attorney at Law Douglas A. Shachtman, Esquire, The Shachtman Law Firm Webpage to the Court of Common Pleas of Delaware Program Materials * The Court of Common Pleas Practice from Theory to Practice Common Pleas Practice Tips * The forms included herein are samples only and may not be appropriate for any particular matter. 1

2 CHIEF JUDGE ALEX JEROME SMALLS Wilmington, Delaware EDUCATION LEGAL Rutgers University School of Law, Camden, New Jersey American Jurisprudence Award, Criminal Law, Juris Doctorate, May 1976 UNDERGRADUATE Morgan State University, Baltimore, Maryland Citation from Alpha Mu Honor Society, Bachelor of Arts, Political Science, May 1972 PROFESSIONAL EXPERIENCE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE Chief Judge - July 21, 1997 to Present Associate Judge - October 8, 1993 to July 20, 1997 MUNICIPAL COURT FOR THE CITY OF WILMINGTON Associate Judge February 21, 1991 to October 8, 1993 CITY OF WILMINGTON DIRECTOR OF PUBLIC SAFETY May 3, 1985 to February 21, 1991 COMMISSIONER OF LICENSES AND INSPECTION January 8, 1985 to May 3, 1985 DEPARTMENT OF JUSTICE FOR THE STATE OF DELAWARE Deputy Attorney General-Criminal Division March 1980 to January 8, 1985 DELAWARE BAR ADMISSION, March 28, 1978 PROFESSIONAL ASSOCIATIONS National Conference of Special Court Judges Delaware Sentencing Accountability Commission American Bar Association Delaware Bar Association National Criminal Justice Association TEACHING EXPERIENCE University of Delaware Delaware State University Delaware Technical Community College AJS Bio Sep 13 07

3 Thomas A. Foley, Esquire Attorney-At-Law Thomas A. Foley has been practicing law since His practice is devoted entirely to criminal defense. Mr. Foley defends all types of criminal cases, ranging from First Degree Murder to Drinking and Driving. Mr. Foley is licensed in Delaware and the District of Columbia. He is also admitted to practice before the U.S. Court of Appeals for the Third Circuit, and the United States Supreme Court. Mr. Foley graduated from Miami University in 1982 and was commissioned as an officer in the United States Marine Corps, where he subsequently was awarded the Navy Commendation Medal. Following an honorable discharge from the Marine Corps, Thomas Foley studied law at the University of Detroit School of Law. After graduating cum laude in 1989, Mr. Foley served as a prosecutor with the Delaware Department of Justice until 1995, when he entered private practice. Mr. Foley is married. He and his family live in Wilmington. T Foley Bio Sep 07

4 DOUGLAS A. SHACHTMAN Douglas A. Shachtman is the proprietor of The Shachtman Law Firm in Wilmington. He has conducted a civil practice, concentrating in litigation for more than 41 years. He has advised clients and litigated in the areas of commercial disputes, construction, civil rights, debt collection, consumer protection statutes, disputes arising from real estate contracts, property disputes and nuisance actions, among other areas of the law. Mr. Shachtman received his B.S.B.A. degree in accounting from the University of Florida cum laude and his Juris Doctor degree from the University of Pennsylvania Law School. He is admitted to practice before the Delaware Supreme Court, the Third Circuit Court of Appeals and the United States District Court for the District of Delaware. He was a member of the Court of Common Pleas Civil Rules Advisory Committee. He is a member of the Delaware State Bar Association. He was appointed to the DSBA Ad Hoc Committee for the Court of Common Pleas Access to Justice and the DSBA Ad Hoc Committee to consider changes to the 2011 Administrative Directive. He taught at Widener Law School and the University of Delaware on a part-time basis, as well as being on the faculty for continuing legal education seminars in consumer law, commercial law, social security law and basic lawyering skills in Delaware and at Legal Service Corporation training sessions in various parts of the country. Further information is available at Shachtmanlaw.com.

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44 COMMON PLEAS PRACTICE TIPS 2015.txt COMMON PLEAS PRACTICE TIPS by Douglas A. Shachtman 1. APPEAL FROM JUSTICES OF THE PEACE COURT 1.1. BEWARE THE "MIRROR IMAGE RULE" Jurisdictional issue - requires dismissal of the appeal Must be the same parties, even if your client likes the outcome as to one party Must be the same claims Look at the JP Court docket, the Complaint, and all case dispositive decisions before your deadline for appeal (even though the court rules allow filing the transcript after the 15-day deadline). You need to know what happened. Do not rely on the client's interpretation of what happened Arbitration is not required 2. SPEED DOCKET (UNIQUE TO CCP) 2.1. Administrative Directive ; Effective 12/28/ Qualify: All original CCP cases; Appeals from JP Court where amount is $10,000 to $50, Goal is trial within 6 months of Answer to Complaint Scheduling Conference within 30 days 2.4. Measured from Scheduling Conference Motion to Amend/Join Parties 30 days Motion to Compel Discovery 45 days Motion to be heard within 60 days Dispositive Motion 90 days Motion to be heard within 120 days Trial within 150 days 2.5. Designation as SPEED case Either party UNILATERALLY may designate case If opposing party objects, must file motion before the Rule 16 scheduling conference and show cause 2.6. Discovery Must promulgate promptly Must answer on time Must contest responses to discovery promptly Very small window for usual extensions of time court may shorten ordinary response time 3. CONSUMER DEBT COLLECTION ACTIONS (UNIQUE TO CCP) 3.1. Administrative Directive ; Effective September 2, Replaces Administrative Directive , which was effective July 1, Limited to claims on consumer debt collection actions 3.3. Imposes specific requirements for plaintiffs beyond those for other types of cases 3.4. Failure to comply; court may address upon motion 3.5. PLEADING REQUIREMENTS Complaint Caption must name original creditor and current assignee Must name original creditor and last 4 digits of account number Must name current owner of debt and copmlete chain of assignment Must break down claim by principal, interest, fees and other charges 3.6. ATTACHMENTS The Administrative Directive attaches specific affidavits and forms to be used Original contract or other documentary evidence Copy of each assignment 3.7. DEFAULT JUDGMENTS There are specific affidavits to be used For failure to comply, court may deny judgment 3.8. ATTORNEY'S FEES must be reasonable Page 1

45 COMMON PLEAS PRACTICE TIPS 2015.txt 4. KNOW YOUR CASE 4.1. What do you need to prove? 4.2. What do you need to discover to prove it? 4.3. What are your likely obstacles? 4.4. Assess damages 5. DISCOVERY 5.1. You are sending discovery What do you need to learn? Keep discovery relevant and carefully phrased (e.g., don't send Personal Injury discovery in a contract dispute) Grant reasonable extensions. Tie them to agreement that opponent will also be reasonable (e.g., limiting use of general objections) 5.2. You are responding to discovery Limit excesses of general objections & repeated sections of stock language If you don't supply requested information during discovery, you probably will not be allowed to use it at trial 5.3. Discovery is not a battering ram to beat the opponent into submission. 6. MOTIONS 6.1. Try to resolve a motion before filing it 6.2. File a timely response (three days before motion hearing) 6.3. Know the law and the facts 6.4. Be concise 6.5. If you don't oppose a motion, notify the court and opposing counsel 7. CASE MANAGEMENT WORKSHEETS 7.1. When there is a Pretrial Conference, a Case Management Worksheet acts as a de facto Pretrial Stipulation Think through your case You, not a paralegal, should prepare them Try to make CMS a joint submission (even with pro se opponents) Resolve evidentiary issues that may determine whether you need to subpoena a witness 8. TRIALS 8.1. Know your case 8.2. Exhibits Premark your proposed exhibits (e.g., Bates numbers) Create a list of your proposed exhibits. It makes trial much easier for you, the courtroom clerk and the judge and shows your preparation If you have many exhibits, prepare notebooks for the judge, opposing counsel, the witness, and, of course, yourself. For smaller cases, you could use acetate folders. Consider three alternatives: [slow & momentum killing] every time that you have another exhibit, you walk to opposing counsel's table, leave a copy, walk to the clerk's desk to pre-mark the exhibit, hand a copy to the bailiff to give to the judge, ask permission to approach the witness; walk to the opposite side of the courtroom and hand the witness the document. Wait while everyone gets "on the same page". If judge does not have copy, (s)he may be at a disadvantage at understanding your point [fast & keeps you in charge] you stand at the lecturn and ask the witness to look at your exhibit notebook, tab 8; the witness, judge, and opposing counsel all turn to tab [third, even better choice when questioning witness re detailed documents or photographs] Use Elmo or laptop presentation; practice beforehand. [slow way] Tell witness to turn to page 8, third full paragraph, fourth sentence (no, not that one, the sentence that begins "Obligor will pay..." [fast way] You point to language on Elmo that you want witness to address, perhaps underlining it, circling it or using arrow which shows up on everyone's monitor. Witness in turn can mark her monitor with other language or another area of photograph. Judge (most importantly) is assisted in following the exchange if you want to use Elmo, arrange it with bailiff before the day of trial to have the equipment in the courtroom Exchange exhibits with opposing counsel Page 2

46 COMMON PLEAS PRACTICE TIPS 2015.txt Stipulate as to exhibits admitted without objection. You can just add a column to the list of exhibits Business records. Do you have a custodian of records or other knowledgeable person Have you planned which witness will testify as to each part of your case? Do they need to be subpoenaed? 8.3. Objections Review the legal basis before trial; be ready to cite the specific rule. The discipline of doing that may show you a weakness that you need to bolster On tough points that are important to you, have a case to cite. Bring copies for judge and opposing counsel Even if you have the right to object, do you want to? Is the point important? Can the opponent easily prove the facts otherwise? The rules will be relaxed for pro se litigants. However, for an important point, make your objection advise the judge of the prejudice (e.g., inability to cross-exam absent witness, author of document, etc.) if you don't object, you lose your objection on appeal Legal issues If there are important legal issues, does the judge want a pretrial memorandum, bench memorandum or post-trial memorandum? 9. CIVILITY 9.1. PRETRIAL Extend deadlines reasonably Be practical. If you deny a 10-day extension and the opponent files a motion, how soon do you think you will get the response? While you may be invincible, can you guarantee that your secretary will never be sick when one of your deadlines comes due (or that your child won't be sick or your sister in Kalamazoo won't be getting married, etc., etc., etc.) Don't demand responses in an artificially short time or create deemed consequences (e.g., the 1:30 , "If I don't receive a response by 4:00, I will assume that you agree that your client is liable" You are not a weapon for your client (or forwarding legal counsel) to inflict emotional distress on the opponent 9.2. TRIAL Address the Court, not the opponent (unless the court permits a conference to attempt to informally resolve a disagreement) Courtesy to all concerned (even the prevaricating opposing witness) 9.3. COMMUNICATIONS Disagree without being disagreeable 10. A LIFETIME OF EDUCATING YOURSELF What you know Law School: how many courses did you take in a particular topic Bar Review: concentrated study of major topics research you have done as a law clerk What you don't know % of principles of law, exceptions, exceptions to exceptions Constantly educate yourself not just formal CLE It will make you a much better attorney. You will build a reputation for knowing what you are arguing. You will win cases where the opponent is less prepared. You will avoid losing cases to a better prepared opponent you will avoid the "M" word (hint, it involves contacting an insurance carrier and maybe disciplinary counsel) Do some of it off the clock. The client is hiring you (or hired your senior partner) assuming that you are knowledgeable. Page 3