Filing An Appeal in the Supreme Court of the State of Delaware: A Citizen's Guide

Quick Links

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Delaware Supreme Court Website

Delaware Code Annotated

Delaware Rules Annotated

E-Filing

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Forms

Judicial Branch Operating Procedures

Legal Assistance:
Delaware State Courts Legal Assistance
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Legal Dictionary

Definitions

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Any definitions that are not included in this list may be found in Black’s Law Dictionary, available in most libraries or online.

Affidavit. A statement of the facts and procedural background related to a motion, based on personal knowledge, set forth in concise paragraphs, and sworn to be true before a notary public.

Appeal. A review by the Delaware Supreme Court of what happened in the trial court to determine whether any mistakes occurred and, if so, whether the decision should be changed and the party who filed the appeal is entitled to a remedy.

Appellant. A party who appeals from a decision of the trial court.

Appellee. A party against whom an appeal is taken and who responds to that appeal.

Arms of the Court. Boards and Commissions that perform tasks or duties related to the Court’s functions.

Brief. A written statement that provides the facts of your case and the arguments for why you are correct.

Cases. A legal action to be decided in court.

Citations. The source where you found the information you are stating, including cases, statutes, rules, articles, etc.

Clerk of the Court. The chief official in charge of the records and filings of the Delaware Supreme Court.

Courts.

Court en banc. The Delaware Supreme Court en banc is when all five Justices hear and decide a case. If a Justice has a conflict of interest, a former Justice or an active State Judge will be assigned to hear the case.

Cross-appeal. An appeal filed by the appellee, which usually is heard at the same time as the appellant’s appeal.

Defendant. The party against whom a lawsuit is filed in trial court.

Docket. The list of documents in a case that have been filed in the Court and the date they were filed.

E-Filing. The option of filing documents in the Court electronically.

Filing. A document has been filed in the Court when the Clerk has actually received it and has stamped the date and time on the document.

In forma pauperis. Translated means “in the form of a pauper.” The words have come to mean an application presented to the Court to waive filing fees and other charges because of a person’s financial circumstances. The Court requires a showing of financial inability to pay before waiving filing fees and other charges.

Indigent. A person who does not have enough property or income to support himself and does not have anyone to support him.

Interlocutory appeal. An appeal that is filed before the trial court has entered its final order in the case.

Interlocutory order. An order that addresses some intermediate matter and is issued before the trial court has reached its final decision in the case.

Internal Operating Procedures (“IOP”). The IOP are procedural guidelines that explain in detail how the Delaware Supreme Court processes its caseload. The IOP are referenced in this Citizen’s Guide and are published in the Delaware Rules Annotated and are available online on the Supreme Court’s website.

Judicial Branch. The courts and the organizations that support the courts.

Jurisdiction. Authority.

Legal Authority. A case, law, statute, or rule that supports your arguments in your brief and shows why you are correct.

Memorandum. A document presenting arguments and applying research and analysis to particular facts.

Motion. A written application requesting the Court to make a specific ruling or order.

Notice of appeal. The paper filed in the Delaware Supreme Court notifying the Court that a case is being appealed.

Opinion. A written explanation by a judge or group of judges that accompanies an order or ruling in a case, explaining the reasoning and legal authority for the ruling.

Order. A ruling issued by a judge or group of judges. There are Interlocutory Orders (defined above) and final orders or final judgments. Typically, only final orders or final judgments can be appealed to the Supreme Court. An order or judgment is final only when the trial judge has decided all of the issues presented to that court. Interlocutory Orders can only be appealed to the Supreme Court if the requirements of Supreme Court Rule 42 are met. Appeals of Interlocutory Orders are rarely granted to avoid piecemeal appeals from the sometimes many interlocutory orders a trial court must issue before it renders a final order or final judgment deciding all of the dispute.

Parties. The plaintiff and defendant; the petitioner and the respondent; or the appellant and appellee.

Plaintiff. The person or entity filing the lawsuit in the trial court.

Pro Se. Translated means “for oneself” or “on one’s own behalf.” The term has come to mean a person who does not have a lawyer and appears on his or her own behalf before the Court. Also known as “self-represented.”

Record. All of the original papers and exhibits filed in the trial court.

Self-represented. The term used for a person who does not have a lawyer and appears on his or her own behalf before the Court. Also known as "pro se."

Service. Delivery of a copy of a document to be filed in the Court to the other party (or parties) to the case.

Transcript. A word-for-word typewritten account of what was said in a court proceeding.

Writ. An extraordinary remedy that is within the original jurisdiction of the Supreme Court. In general, a writ may be issued only when the party requesting it does not have any other remedy. Typically, writs are issued to stop a trial court from hearing cases outside its jurisdiction or to compel a trial court to perform a mandatory duty. There are other kinds of writs not discussed in this guide.

The Delaware Supreme Court

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The Delaware Supreme Court’s website can be found at: https://courts.delaware.gov/supreme/. The Court’s website contains timely news items about the Court and provides links to the Court’s Opinions and Orders, Court Rules, profiles of the Justices, and the Boards and Commissions that make up the Arms of the Court. This Citizen’s Guide is also available through the Court’s website. Access to the Court’s online electronic docket is available for paying account-holders through File & Serve Xpress.

What is the Delaware Supreme Court?

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The Delaware Supreme Court is the highest court in the State of Delaware. It has five Justices, including a Chief Justice. The Justices are nominated by the Governor and confirmed by the Delaware State Senate. The Justices are Delaware lawyers who are appointed for twelve-year terms. Generally, three Justices will hear and decide a case, or, in some circumstances all five Justices will hear the case, which is called “en banc.”

The Delaware Supreme Court is primarily a court of appeals. An appeal is not a new trial, but rather, is an argument of why a decision in a trial court was wrong. Normally, parties filing appeals before the Supreme Court cannot offer any evidence or arguments that were not presented to the trial court first. The Court decides appeals strictly on the basis of the record of the proceedings in the trial court and the written briefs filed by the parties in the Supreme Court. When lawyers are representing all parties, the Court may request oral argument. Otherwise, the Court will decide the appeal based on the written submissions of the parties.

The Delaware Supreme Court also has original jurisdiction to issue different types of writs (not discussed here). Writs are extraordinary remedies, which the Court does not issue frequently. An application for a writ does not replace an appeal. Writs are governed by Supreme Court Rule 43.

The Delaware Supreme Court is part of Delaware’s Judicial Branch. To understand how the Supreme Court and the Judicial Branch work, it may be helpful to review the Judicial Branch Operating Procedures.

References: Del. Const. art. IV, § 2; Supr. Ct. R. 4, 43; IOP VIII, IX, X.

Where is the Delaware Supreme Court?

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The Delaware Supreme Court has offices in all three counties of the State. The Clerk of the Court is located in Dover, but there are Deputy Clerks to accept filings in each county. The Court’s regular business hours for accepting filings are 8:30 a.m. to 4:30 p.m., Monday through Friday. If you have a question about your appeal, you should direct it to the Clerk’s Office in Dover. The address and telephone number are:

Clerk of Court
Supreme Court of Delaware
55 The Green
Dover, DE 19903
(302) 739-4155

If you are located in New Castle County or Sussex County and want to file a document in person, Supreme Court filings are accepted at:

All communication with the Supreme Court must be conducted through the Clerk’s Office. No party is permitted to contact an individual Justice by telephone or email about any case.

References: Supr. Ct. R. 10, 91; IOP IV.

What and when may I appeal to the Delaware Supreme Court?

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In civil cases, you may appeal to the Delaware Supreme Court final orders issued by the judges (not commissioners or masters) of the Court of Chancery, the Superior Court, and the Family Court. An order is final if it resolves all of the issues in the litigation, including claims for attorneys’ fees. An order is interlocutory, meaning it is not final, if it decides only some of the issues or claims in the trial court. In civil cases, the trial court can make an interlocutory order a final judgment if it meets the criteria of Rule 54(b) of the trial court. If the interlocutory order is not entered as a final judgment under Rule 54(b), then the Supreme Court will accept an appeal from the interlocutory order only if it meets the strict standards explained below and by the Delaware Rules, and complies with Supreme Court Rule 42.

How do I know my order is final so I can appeal?

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Self-represented litigants are often tripped up on the difference between an interlocutory order and a final order. They often express frustration over wasted time and effort when they appeal a non-final or interlocutory order, and find themselves thrown out on what seems like a technical ground. The final order in the case is generally the one that resolves any remaining issues in the case and means that the trial judge has ruled on every issue in the case. It is only at this stage that an appeal can typically be taken. The Court strictly enforces the final order requirement. As has been explained, any appeal of a non-final or interlocutory order can only be taken if you comply with a series of special rules in Supreme Court Rule 42, including the requirement to apply first to the trial judge for permission to appeal.

In criminal cases, you may appeal orders and sentences from the Superior Court when the sentence imposed a sentence of imprisonment for longer than one month, or a fine exceeding $100. In criminal appeals from the Superior Court, the final order in the case is considered issued—and the time limit to appeal it starts—the day the defendant is sentenced, regardless of when the sentencing order is actually filed in the trial court docket. In post-conviction relief and civil appeals, the Superior Court’s final order must be docketed before a party can file a notice of appeal with the Supreme Court.

References: Del. Const. art. IV, § 11; Del. Supr. Ct. R. 6.

Do I need a lawyer?

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Individuals may appear before the Delaware Supreme Court without a lawyer. Corporations and other organizations must have a Delaware lawyer.

Although an individual is not required to have a lawyer, most people find that having a lawyer to help with an appeal is helpful. If you would like the help of a lawyer, but think you cannot afford one, you may be able to obtain free legal assistance by going to the Legal Help Link. Legal Help Link is a service for several agencies in Delaware that provide legal services to qualified applicants with limited means, including Community Legal Aid Society, Delaware Volunteer Legal Services, the Legal Services Corporation, and the Lawyer Referral Service. More information is available on the Delaware Courts Legal Assistance page.

If you pursue your appeal without a lawyer, you must still comply with the Rules of the Supreme Court. You may find it helpful to refer to various legal resources in writing your brief. These resources are available at many public libraries and online, and include the:

• Delaware Rules Annotated. Provides each of the Delaware Courts’ procedural rules and addresses evidence, professional conduct, civil and criminal procedures, and guidelines for self-representation. The Rules are available at most libraries and online.
• Delaware Code Annotated. Provides all of Delaware’s statutes and laws. The Code is available in most libraries and online.
• Atlantic Reporter. Provides all of the Delaware Courts’ published opinions. The Reporter is available at most libraries.

References: Del. Supr. Ct. R. 12.

Steps to Appeal

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These are the basic steps you must take to appeal. It is important to pay attention to the timing and procedures you must follow to complete each step.

1. File a Notice of Appeal before the deadline.
2. Pay court fees or submit a Motion to Proceed in Forma Pauperis explaining why you are unable to pay.
3. Order transcripts.
4. File an Opening Brief and Appendix if you are the one appealing.
5. File an Answering Brief and Appendix if the appeal was filed against you.
6. File a Reply Brief, after the Answering Brief is filed, if you are the one appealing.

How do I file a Notice of Appeal?

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Two copies of a notice of appeal must be sent to the lawyer for each party in the proceeding below—or if a party does not have a lawyer, then sent to the party directly—either in person or by mail. After service is completed, the original notice of appeal must be filed in person or by mail with the Supreme Court Clerk or any Deputy Clerk in any of Delaware’s three counties. The person or entity appealing also has the option of filing the appeal electronically in accordance with the Supreme Court Rules 10.1 and 10.2. The procedures and rules for e-filing are available on the Supreme Court efiling page.

A notice of appeal or cross-appeal should contain the following information:

• The name of the party or parties making the appeal;
• The name of the party or parties against whom the appeal is made;
• The name and address of each party’s lawyer; and if any party does not have a lawyer, then the name and last known address of that party;
• In a criminal appeal, the name of all codefendants the appellant was tried with;
• The date of the judgment or order the party is appealing;
• Lawyers for any parties against whom the appeal is not being made; and
• Any designation of a transcript as required by Supreme Court Rule 9(e).

A copy of the final order being appealed, and any separate written decision that supports it, should be attached to the notice of appeal

Samples of a Notice of Appeal, a Notice of Interlocutory Appeal, and a Certificate of Service are at the end of this guide.

References: Del. Supr. Ct. R. 7, 10.1, 10.2, 42.

What if an appeal has been filed against me, and I also want to appeal?

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In civil cases, any party may file a cross-appeal within 15 days of the other party’s notice of appeal, or within 30 days of the final judgment or order from which the appeal is made, whichever is later.

References: 10 Del. C. §§ 143–49; Del. Supr. Ct. R. 6.

When do I file a Notice of Appeal?

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Except in direct criminal appeals, you must file your notice of appeal with the Clerk’s office, and the Clerk’s office must receive it, within 30 days after the trial court enters on the docket the judgment or order from which the appeal is taken. In a direct criminal appeal, the notice of appeal must be received by the Clerk of the Supreme Court within 30 days after sentence is imposed.

The 30-day appeal period for a direct criminal appeal starts to run the day after sentencing, and for all other appeals, the day after the trial court dockets the order being appealed. All days of the week are counted when computing the 30-day appeal period. The last day of the 30-day period is counted unless it is a day the Supreme Court Clerk’s Office is closed for weekends, court-specific holidays, or bad weather. In that case, the 30-day period ends on the next day the Clerk’s Office is open. You are responsible for knowing when the trial court enters its final order and for computing the 30-day appeal period. Supreme Court personnel are not allowed to tell you when your notice of appeal is due or compute the 30-day appeal period for you. If you file your notice of appeal by mail, it is not considered “filed” until the day the Supreme Court actually receives it. The bottom line is, don’t wait until the last minute to file an appeal. You risk losing the ability for the Court to hear the appeal.

The 30-day appeal period cannot be extended.

Except on rare occasions, when the Court is the cause of a late-filed appeal, the 30- day appeal period cannot be extended. You should assume if your appeal was not filed within the 30-day period, it will be dismissed and you will not be able to appeal.

What does it cost to file a Notice of Appeal?

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There is a nonrefundable $510 filing fee that must be paid at the time a notice of appeal or notice of cross-appeal is filed with the Delaware Supreme Court. Payment of the filing fee is not required for appeals from decisions of the Industrial Accident Board or the Unemployment Insurance Appeal Board. The filing fee is generally the only fee charged by the Supreme Court.

What if I cannot pay?

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If you are indigent and unable to pay the filing fee, you may file a motion to proceed in forma pauperis, which includes an “affidavit of indigency”—a document providing personal information to help the Court decide whether you will be excused from paying the filing fee. You must send a copy of the motion and affidavit, just like any document you file with the Supreme Court, to the opposing party’s lawyer, or to the opposing party directly if the opposing party is not represented by a lawyer.

The Supreme Court may waive the $510 filing fee. The waiver of this fee, however, does not waive any other fees or costs that may be associated with your appeal. For instance, there may be a fee charged by the trial court for ordering or transmitting the record on appeal to the Supreme Court. None of these fees or costs, which are imposed by the trial court, can be waived by the Supreme Court.

If you mistakenly file a notice of appeal from an unappealable interlocutory order and your appeal is dismissed for failure to comply with Supreme Court Rule 42, the Supreme Court may transfer the filing fee you paid to any later appeal you file in the same case

Sample Motion to Proceed in Forma Pauperis.

References: Del. Supr. Ct. R. 20.

How do I order transcripts?

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You do not have to order transcripts, but it is strongly recommended. If you are going to refer in your brief to testimony or an argument that was made in the trial court, you must state in your notice of appeal (or in an attachment to your notice of appeal) the date or dates of the hearings that need to be transcribed so they can be included in the record. If you do not designate the transcript, the Supreme Court will decide your appeal without it and will reject any argument that you try to make relying on facts in the transcript. If you do not order a copy of the transcript, and the Supreme Court needs the transcript to decide the issues you have raised on appeal, those issues can be dismissed for failure to order the transcript.

If you want to request your own copy of the transcript, you must give the appropriate court reporter a copy of the notice of appeal and any attached directions. You must file with the Clerk of the Supreme Court a certificate stating that the notice of appeal and directions were given to the court reporter and that the cost of the requested transcript was paid or will be paid soon. The party requesting the transcript must make the arrangements to pay for the transcripts. Any questions about transcripts, including questions regarding transcript costs, should first be directed to the trial court. The Supreme Court may review disputes over transcripts as part of the appeal.

If your case was decided solely on the basis of briefs or other written documents, and there was no hearing before a judge, you should say so in your notice of appeal or cross-appeal that no transcript is necessary.

Samples of Directions to Court Reporter and Statement in Lieu of Ordering Transcript.

References: Del. Supr. Ct. R. 7, 9; Official Forms C and D.

How do I file a brief with the Delaware Supreme Court?

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After you file your notice of appeal, the Clerk of the Court will send out a scheduling order informing the parties of the dates that briefs will be due. Supreme Court Rules 13, 14, and 15 explain the form, contents, and time for filing a brief and appendix on appeal. The Court is strict about enforcing these rules when a lawyer files a brief on behalf of a party. If you are representing yourself the Court may, but is not required to, relax some of the rules regarding the form and content of your brief. Even if you are self-represented, the Court will strictly apply the following rules:

• You must sign and file an original copy of your brief.
• You must be sure your brief is clearly legible, regardless of whether it is typed or handwritten.
• If you type or handwrite your brief, you must not exceed the page limitation set forth in Rule 14(d)(iii). If you need additional space, you must file a motion for a page extension at least five days before the brief due date.
• If you use a word processing program to prepare your brief, you must not exceed the word count limitation set forth in Rule 14(d)(i) and you must file a Certificate of Compliance as set forth in Rule 14(d)(ii) (a sample Certificate of Compliance is located at the back of this guide). If you need additional space, you must file a motion for a word count extension at least five days before the brief due date.
• You must file your brief on or before the deadline in the scheduling notice. Although the Court disfavors extensions, if you need an extension of time to file your brief, you may file a motion for an extension in accordance with Supreme Court Rule 15(b). You must do so at least five days before the deadline given.
• A sample Motion under Rule 15(b) is at the back of this guide.

References: Del. Supr. Ct. R. 13, 14(d), 15(b).

What is an Opening Brief?

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The opening brief is a written document explaining why you are appealing and what you think is wrong with the trial court’s decision. The opening brief is limited to 35 pages (or 10,000 words if you use a word processing program), not including the appendix.

Although the Court will be flexible about the form and content of your brief, you should still organize your brief as best you can. It will help the Court to understand your issues on appeal if you divide your opening brief into the following sections:

• Table of Contents;
• Table of Citations, which alphabetically lists all legal authorities cited in your brief;
• Nature of the Proceedings, which describes the lower court proceedings, including the judgment to be reviewed;
• Summary of the Arguments, which states in separate numbered paragraphs the specific issues you are raising on appeal;
• Statement of the Facts, including only facts that were presented to the trial court and are supported by the record;
• Argument, which divides each issue you want to raise into separate sections and provides legal authority to support your reasoning for each one; and
• Conclusion, which briefly tells the Court what remedy you are seeking (what you want the Court to hold).

You must attach a copy of the decision being appealed to your opening brief.

The appendix to your opening brief should include whatever pages of the record you would like the Court to read when it considers the issues you raise on appeal. You should file an original signed opening brief and appendix.

What is an Answering Brief?

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The answering brief is the appellee’s opportunity to tell the Supreme Court why the trial court’s decision was correct and should be affirmed. The answering brief and appendix are due 30 days after the court receives the opening brief and appendix. The answering brief is limited to 35 pages (or 10,000 words if you use a word processing program), not including its appendix. It should include all the same sections listed above for the opening brief. The appellee does not have to file an appendix to the answering brief if the appellee chooses to rely on the material included in the appendix to the appellant’s opening brief, and can instead cite to those appendix pages in the opening brief. The appellee’s appendix should not include any of the same material as the opening brief.

What is a Reply Brief?

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If you are the appellant, you may file a reply brief in response to the appellee’s answering brief. A reply brief is not required, but it is recommended. The reply brief should not contain any new arguments or issues. The purpose of the reply brief is to respond to any points raised in the appellee’s answering brief that you did not address in your opening brief. The reply brief is due 15 days after service of the answering brief and is limited to 20 pages (or 5,500 words if you use a word processing program).

References: Del. Supr. Ct. R. 13, 14, 15.

What is a Record?

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The record consists of all the original papers and exhibits filed in the trial court. It will be sent automatically by the trial court to the Supreme Court Clerk’s Office after the notice of appeal is filed and any ordered transcripts are prepared. The record will include: the transcript, if any was ordered; the complaint and other pleadings; pretrial orders; motions; any written orders, opinions, memoranda, or judgments by the trial court; docket entries; jury instructions; and all the documents and exhibits admitted into evidence by the trial court. In addition, any evidence that you presented to the trial court that was not admitted into evidence is part of the record on appeal for determining the admissibility of the evidence. Material that you obtained from the other parties during the discovery process is not considered part of the record on appeal unless it was presented to the trial court. Remember, it is your responsibility to make sure that the record contains all of the relevant material that is necessary for the Supreme Court to decide your appeal. You may not raise arguments to the Supreme Court unless you raised the argument in the trial court and the argument is supported by the record.

References: Del. Supr. Ct. R. 8, 9.

When will the Supreme Court decide my appeal?

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The Court will schedule your appeal for a decision after the answering brief is filed. If it would be helpful to the Court or the issues raised in the briefs are new or difficult, and the parties are represented by lawyers, oral argument may be scheduled. Oral argument is not ordered in every case.

The Clerk’s Office will notify you if your case is scheduled for oral argument. In the majority of cases, the Court will issue a final written decision within 90 days after the submission date. The decision will be mailed to you.

References: Del. Supr. Ct. R. 16, 17.

What can I do if I lose my appeal?

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The Delaware Supreme Court is the highest court in this State. Therefore, if you lose on appeal to this Court, there is no other State court to which you can appeal. Although they are rarely granted, you may file with the Court either a motion for reargument or a motion for rehearing en banc. A motion for reargument is a request to the same three Justices that issued the final decision in your case to reconsider its decision. A motion for rehearing en banc is a request to have all five Justices of the Court consider your case as if the Court was reviewing it for the first time. A motion for rehearing en banc can be requested only for the following reasons:

• The appeal involves a case of exceptional legal importance;
• Consideration by the full Court is necessary to maintain uniformity in Supreme Court decisions; or
• The case may be controlled by a prior decision of the Court that should be considered and that may be overruled or modified.

Motions for reargument or for rehearing en banc are due within 15 days after the Court files the final decision in the case. As with any motion, motions for reargument or for rehearing en banc are limited to 4 pages. It is worth repeating that Motions for reargument or rehearing rarely are granted and, if granted, rarely lead to a different result.

Once the Court has issued its final decision and resolved any pending motions for reargument or rehearing en banc, the unsuccessful party may try to seek relief in the federal courts. The procedure for seeking such relief is beyond the scope of this guide and the jurisdiction of this Court.

References: Del. Supr. Ct. R. 4(f), 18, 30(a).

Form Templates

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1. Notice of Appeal
2. Notice of Appeal from Interlocutory Order
3. Certificate of Service
4. Directions to Court Reporter of Proceedings Below to be Transcribed Pursuant to Rule 9(e)
   Request to order your transcripts.
5. Statement Pursuant to Rule 9(e) in lieu of Ordering Transcript of Proceedings Below
   Statement that you don’t need to order transcripts.
6. Motion and Affidavit to Proceed in Forma Pauperis
   Motion stating why you can’t pay the Supreme Court fees.
7. Certificate of Compliance with Typeface Requirement
8. Motion under Rule 15(b)
   Request to extend the deadline for filing your briefs.

More form templates.