The 2023 District of Delaware Bench and Bar wrapped up today. It was really great to see everyone in person again. It's hard to believe it, but the last D. Del. Bench and Bar conference was back in May 2018 - over five years ago!
Everyone seems to agree the conference was a huge success. Thank you to the organizers and the Court, who put in a ton of work to make it happen!
Notes
The conference is conducted under the Chatham House Rule—which, honestly, we had forgotten. That means we "are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant."
I know people were looking forward to some takeaways from the conference, since it's always a wonderful source of information, particularly about the judges and their preferences and procedures.
To protect the identity of the speakers, we won't pass along any judge-specific procedures or thoughts on specific panels, but below are a few of the many notable points and comments that came up during the conference. I'm planning to break this into two parts, so that I'm not throwing a wall of text at you.
I realize these aren't all particularly helpful without attribution, but I hope they will at least be a useful refresher for those who were at the conference:
Feedback Regarding In-House Counsel/Clients
- Here are some of the things in-house counsel may be looking for in selecting outside counsel (in no particular order):
- Ability to send briefs weeks, not days, in advance of the deadline. (Although this may be challenging for briefs with 14-day turn-arounds!)
- Responsiveness. The example used was how responding to an e-mail six hours after it was received was too slow. I thought that was a great data point and an important reminder for all of us!
- Diverse partnerships
- Feedback that is more than just issue spotting. They want to hear a recommendation on what to do.
- Knowledge of the product
- Knowledge of the bigger picture, including legal issues in the industry
- Pitches that go beyond the usual citations to § 101, 102, and 103 -- for example, a pitch that shows an understanding of what the case will look like.
- In-house counsel may also look for pitches from teams rather than firms, and that they appreciate when a firm pushes back when it's too busy rather than taking work they don't have the capacity for (we all want that problem!). Pushing back can result in more work over the long run because they respect the honesty.
- State court cases and arbitrations make up a large portion of some clients' case load.
- Trade secret cases are increasing, and often happen in state court.
- For arbitrations in particular, it can be difficult to finding counsel who are well-versed in arbitration rules, given that arbitration rules can be vary between agencies, and are very different from district court rules (other than JAMS).
Trial and Appellate Practice Tips from Judges, In-house Counsel, or Experienced Attorneys
- Jury instructions are critical and shouldn't be given short shrift
- More senior attorneys sometimes try to re-argue jury instructions when they see the results of the charge conference; it's more effective for them to be involved from the beginning.
- Can have a major impact on appeal
- You have three audiences for every jury trial: the jury, the judge, and the appeals court.
- The jury for the verdict
- The judge for post-trial motions
- The appellate court for the appeal
- It's not always effective to plant seeds hoping that they will grow at the court of appeals. It's best to make arguments squarely at the district court level.
- Some judges don't like parties taking positions specifically to preserve issues for appeal—but it's a balance.
- Mock trials:
- Recommended for all sophisticated companies
- Reveals juror bias for/against the parties
- Useful to see how jurors weigh the evidence
- Useful to make the attorneys more prepared
- May not be as predictive of actual outcomes as some counsel think
- Briefs
- Shorter is better
- A small number of effective points is best
- Get to the point
- Trial Objections
- Juries hate sidebars
- Judges feel pressured
- It's best to resolve things before the jury comes in
- Objections during openings and closings
- Generally only for clearly misstating the record or the law
- Generally be more patient in openings
- It's very dependent on the specific circumstances
- Appellate Arguments
- Have record cites ready for every critical fact. At oral argument, "I didn't try the case, your honor" is a terrible answer. Know the record backwards and forwards.
- Ideally, present no more than three arguments on appeal
- Arguments on weight and sufficiency of evidence are tough
- Waiver arguments can be effective, but too many waiver arguments may make judges cynical
- It can be useful for clients to change counsel between the district court and appeal. They involve different skills, and trial counsel may be too caught up in the day-to-day back-and-forth of trial and unable to cut back to just the three most effective arguments.
- Don't do "jury arguments" on appeal; know your audience
- Patent cases see many reversals, in part because claim construction is reviewed on a de novo standard.
That's it for Part I. We'll be back on Monday with some more un-attributed thoughts from the conference.
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