Updated: December 12, 2018
For Attorneys & Legal Staff Only:
Chambers Fax: (302) 739-6720 *
Prothonotary Fax: (302) 739-6717 *
* Please advise the Administrative Specialist or Civil Case Manager by phone or email that a FAX transmission has been or is about to be sent to chambers or the prothonotary.
Only counsel, not legal staff, may write directly to Judge Witham. All correspondence must be signed by an attorney in the law firm of the attorney of records.
Any letter to the Court requesting Court action of some kind (in instances where a motion is otherwise not appropriate) must state the position of all parties or otherwise represent that opposing counsel or self-represented party could not be reached.
Email should not be used with Judge Witham except when (a) Judge Witham has approved same or (b) exigent circumstances exist. However, this does not preclude administrative-type emails, particularly to staff.
Administrative emails are not docketed. Administrative emails should only be sent to Judge Witham if not appropriate to be sent to staff.
Emails or Faxes will NOT be docketed and are not considered official filings.
A teleconference with the Court may be requested by calling Judge Witham's Administrative Specialist. Counsel requesting the teleconference will arrange to initiate the call, otherwise Plaintiff's counsel will be responsible.
Judge Witham makes every effort to be available by teleconference to resolve disputes that arise during depositions, or to address other matters requiring expedited consideration.
Comments or questions from lawyers, paralegals, and other legal staff about Judge Witham's preferences are welcome.
Counsel should always identify any 'related' Superior Court cases on the Case Information Statement filed with the complaint or with the answer so that the new case is assigned to the same judge. If counsel belatedly realizes that the Case Information Statement(s) omitted reference to another pending case and that the subsequent civil case was assigned to a different judge, please promptly notify the Judicial Case Manager for the judge assigned to the subsequently filed case. If you believe the case warrants it, you may request a scheduling conference with the Judge by contacting his Judicial Assistant Dawn Horan.
Initial Scheduling Conferences:
After responsive pleading(s) are filed, counsel will be contacted by the Judge's Judicial Civil Case Manager via letter to set a scheduling teleconference to issue a trial scheduling order. It is the plaintiff's counsel responsibility to initiate this teleconference between the parties and the Court. Any scheduling matter involving a pro se party will be held in person in a courtroom.
Another attorney in the law firm of counsel for a party (other than the attorney(s) who signed the complaint or the responsive pleading) may attend the scheduling conference provided (1) that attorney has a basic understanding of the case, (2) the case is not particularly complex, and (3) the attorney knows that trial attorney's availability.
After receiving a scheduling conference date and time, if all counsel believe that the case is likely to settle soon, counsel for plaintiff(s), speaking for all parties, may write the Court requesting the scheduling conference's postponement. Unless ordered otherwise, the conference will be indefinitely postponed. Counsel for plaintiff(s) must then submit a status report within sixty days of the date of the postponed conference.
If any attorney believes that a Scheduling Order should have been issued, but one has not been issued, counsel should contact the Judicial Case Manager to inquire about the delay. Reminder: a scheduling conference, absent a special request by the parties, is scheduled only after all defendants or third-party defendants have (1) filed responsive pleadings or (2) had default judgments entered against them.
Trial Scheduling Orders:
Judge Witham uses his standard Trial Scheduling Order (TSO) for most civil cases. The TSO sets forth firm deadlines. Failure to meet deadlines, without good cause, may result in the Court's refusal to allow extensions. TSO amendments must be made by (1) appropriate motion or (2) joint stipulation, and ordered by the Court. If a party seeks to extend discovery or expert deadlines, without affecting remaining scheduled dates, the motion or stipulation should so state.
If all counsel think a case has a good chance of settling, and with agreement of all counsel, the Court may 'doublebook' counsel for trial as long as counsel understands the potential necessity to reschedule the latter case.
Appeals From Administrative Agencies, Boards, Commissions and Courts:
If there is an unusual delay in the preparation of the record, counsel for appellant(s) should write to the Court to advise of the problem. Judge Witham may take appropriate action to accelerate this process pursuant to Superior Court Appellate Administrative Order, March 21, 1995.
Oral arguments generally are not held in administrative appeals.
Pursuant to Superior Court Rule 107(b) all briefs and motions must have one-inch margins and be written in 14 pt. type and double-spaced. Exhibits to briefs, chambers copies of motions, or letters, but be individually tabbed. Briefs, exhibits, or appendices must be stapled or bound. Always include an Order Page.
Case Citations shall use Westlaw format for unreported decisions where possible; Exhibits and unreported cases not cited in Westlaw should be physically attached to the briefs and motions unless impractical because of their volume, in which case a separate compendium will be appropriate. When responding to a motion, avoid using terms and phrases typically used in answers to complaints (Admitted, Denied as Stated, etc.) in numbered paragraphs corresponding to the numbered paragraphs in the motion.
The Commissioner hears non-dispositive motions on Thursdays at 2 p.m. Routine motions must be filed ten (10) days prior to the noticed date and shall not exceed 6 pages. The motion must be accompanied by a Notice page indicating the date and time of the hearing. The Prothonotary Clerk will reject a motion that exceeds the 6-page limit. Responses to Motions are due no later than four (4) days prior to the hearing date. If no response is timely filed, the Court may deem the motion unopposed and grant the motion in advance of the hearing date. Responses must be accompanied by a Notice page as well and shall not exceed the 6-page limit. No reply is permitted by the moving party. One courtesy copy of both the motion and response (with exhibits) must be filed in the Prothonotary's Office. If the motion is not received timely, the hearing will not go forward.
If counsel does not oppose a routine motion, non-opposing counsel should notify the Court by letter. If possible, an unopposed motion should represent that non-opposition in the motion itself (if such non-opposition is known to the movant) in which event no further notification is necessary.
If an Order is entered before the hearing, the Court will promptly notify the attorney for the movant.
Judge Witham hears motions at 11:00 a.m. on Fridays of the 2nd and 4th weeks of the month. He may decide to hear a motion at a different time, and will so advise counsel. An attorney should contact Judge Witham's Judicial Case Manager to obtain a date and time in which the motion will be heard prior to filing the motion. An attorney should write the Court (1) if the attorney believes the complexity or length of the argument on a motion suggests that another date and time would be more feasible than the normal motion day, or (2) believes that briefing is necessary based upon the complexity of the issues.
The original motion and response should be e-filed with one courtesy copy of each promptly delivered to the Prothonotary's Office upon filing. The motion and response shall not exceed six (6) pages (unless permission has been previously granted to exceed the page limit) and shall include a notice page to be heard at the convenience of the Court. If no response is timely filed, the Court may deem the motion unopposed and grant the motion. The parties must be in compliance with the Civil Case Management Plan.
Counsel is expected to utilize Superior Court Civil Form 46 for Pretrial Stipulations. All legal or evidentiary issues worthy of pretrial identification and focus should be identified in the stipulation with brief citation(s) of legal authorities relied upon. Legal issues raised in the pretrial stipulation will be resolved at the pretrial conference if possible.
Trial counsel, including counsel admitted pro hac vice, must attend the Pretrial Conference. For good cause, such as distance and/or the nature of the case, counsel may be permitted to participate by phone. Requests to attend by phone must be made in writing at least one day prior to the scheduled pre-trial.
Motions In Limine:
Any particularly significant evidentiary issue, including Daubert issues, should be raised by motion in limine. The Court's scheduling order will address deadlines for filing motions in limine. If at all possible, motions in limine will be decided at the pre-trial conference.
Delaware counsel is expected to attend trial, unless excused.
As trial issues arise, counsel should confer with opposing counsel before bringing the issue to the Court's attention to avoid unnecessary surprise to any other party and to seek resolution of the issue without the need of court involvement.
Trial days customarily begin at 10:00 a.m. and conclude at 5:00 p.m., with an hour for lunch (in addition to other shorter recesses).
Counsel desiring a courtroom with specific technology support should contact the Bailiff's Office several days before the trial.
Counsel intending to present any evidence via electronic media (e.g., audio, video, DVD, etc.) should 1) confer with opposing counsel to ensure all necessary redactions or revisions are completed before the start of trial; 2) ensure the media source is compatible with the Court's courtroom technology; 3) ensure that counsel or someone employed by counsel is available and competent to present the evidence at trial; and 4) ensure one copy of the evidence presented (and a transcript thereof, if applicable) is prepared and ready to be marked and submitted as a Court exhibit at the time the evidence is presented.
The Court encourages the use of joint exhibits, whenever possible. All exhibits should be pre-marked, whenever possible.
Counsel intending to use demonstrative exhibits during opening statements should confer with opposing counsel several days before the trial and seek to resolve any issues.
Court submissions that are likely to be revised by the Court, i.e., proposed jury instructions and voir dire questions, should be submitted to the court by no later than 7 days before the first day of trial.