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

Introduction
Glossary of Terms
What is the Delaware Supreme Court?
Where is the Delaware Supreme Court located?
Is there Internet access to the Delaware Supreme Court?
What orders may be appealed to the Supreme Court?
Do I need a lawyer?
When should I file my appeal?
How do I file a notice of appeal?
Why do I need to order transcripts?
What does it cost to file a notice of appeal?

What is the record?
How do I file a brief with the Supreme Court?
The Opening Brief and Appendix
The Answering Brief and Appendix
The Reply Brief and Appendix
What is a motion to affirm?
When will the Supreme Court decide my case?
What can I do if I lose on appeal?

Introduction

This pamphlet is intended primarily to assist non-lawyers with the basic procedural steps that must be followed when filing an appeal in the Delaware Supreme Court. This pamphlet is not legal advice and should not be cited as legal authority. The information in this pamphlet is not intended to replace the Supreme Court Rules but should be used in conjunction with the Rules. Litigants also may want to consult the Court's Internal Operating Procedures ("IOP's"). These can be found in the Delaware Rules Annotated.

This pamphlet reflects the Supreme Court Rules in effect as of March 1, 2001. The Rules are always subject to change without notice. Therefore, you should consult the Rules for any changes. You may call the Supreme Court Clerk's Office if you have a specific question about how to file your papers with the Court. Although our staff will try to help answer your procedural questions, you must remember that employees of the Supreme Court are not permitted to give legal advice or make specific recommendations to you on how you should pursue your claims on appeal or defend against an appeal.

Glossary of Terms

Appeal. A review by the Delaware Supreme Court of what happened in the court below to determine whether any mistakes occurred and, if so, whether the party who filed the appeal is entitled to have the decision of the court below reversed.

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

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

Brief. A written statement that explains the arguments of a party to an appeal.

Court en banc. The Delaware Supreme Court en banc consists of a quorum of the Court, which means all five Justices. If a Justice has conflict of interest, a former Justice or an active State Judge will be assigned to complete a quorum.

Cross-appeal. An appeal filed by the appellee, which usually is heard at the same time as the appellant's appeal. A cross-appeal usually requests the Supreme Court to correct an alleged mistake made by the court below and seeks a remedy that is different from the remedy requested by the appellant.

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

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. The term used when a party to an appeal is indigent and has certified to the Court that he or she cannot pay the filing fee.

Interlocutory appeal. An appeal that is filed before the trial court had 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.

Jurisdiction. Authority.

Appellate jurisdiction. The Delaware Supreme Court's authority to review and revise a lower court's decision.

Original jurisdiction. The Delaware Supreme Court's authority to hear and decide a matter before any other court has reviewed it.

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 matter is being appealed.

Record. All the original papers and exhibits filed with the court below.

Self-represented. The term used for a person who does not retain 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 the court below.

Writ. An extraordinary remedy that is within the original jurisdiction of the Supreme Court. Although there are several different types of writs, they usually are issued to prohibit a trial court from exceeding its jurisdiction or to compel a trial court to perform a mandatory duty. In general, a writ may be issued only when the party requesting the writ does not have any other legal remedy.

What is the Delaware Supreme Court?

The Delaware Supreme Court is the highest court in the State of Delaware. It consists of five Justices, including a Chief Justice. The Court sits in panels of three Justices to decide most cases.

The Delaware Supreme Court is primarily a court of appeals. An appeal is not a new trial. Parties in an appeal before the Supreme Court will not be permitted to offer any evidence that was not presented first to the court below. The Court decides appeals strictly on the basis of the record of the proceedings in the court below and the written briefs filed by the parties. The Court also may request oral argument by the parties. The Court rarely requests oral argument if there is a party who is not represented by a lawyer.

The Delaware Supreme Court also has original jurisdiction to issue writs. There are several types of writs. Writs are extraordinary remedies and are not issued frequently by the Court. An application for a writ does not replace a timely-filed appeal. Writs are governed by Supreme Court Rule 43. Writs are not discussed further in this pamphlet.

References: Del. Const. art. IV, § 2; Supr. Ct. R. 4, 43; IOP VI, VII.

Where is the Delaware Supreme Court located?

The 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 your letters or telephone calls to the Clerk's Office in Dover. The address and telephone number are:

Clerk of Court
Supreme Court of Delaware
55 The Green
P.O. Box 476
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, the Supreme Court's other offices are located at:

Carvel State Office Building
820 N. French St., 11th Floor
P.O. Box 1997
Wilmington, DE 19899
Court of Chancery Building
34 The Circle
Georgetown, DE 19947

All communication with the Supreme Court must be conducted through the Clerk's Office. No party is permitted to contact an individual Justice regarding any case.

References: Supr. Ct. R. 10, 91; IOP III, XX.

Is there Internet access to the Delaware Supreme Court?

You may access information about the Delaware Supreme Court through the Internet. The Court's Internet address is: http://courts.delaware.gov/supreme. The Court's web site 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 pamphlet is available through the Court's web site. The Virtual Docket, which provides access to Court filings, also is available through the Internet. Its Internet address is: http://www.virtualdocket.com/.

What orders may be appealed to the Supreme Court?

In civil cases, the Delaware Supreme Court has jurisdiction to accept appeals from 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 the issue of attorneys fees. An order is interlocutory if it decides only some of the issues or claims but not all of them. In civil cases, the court below may enter an interlocutory order as a final judgment for purposes of appeal if the order meets the criteria of Rule 54(b) of the court below. 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 criteria and is filed in compliance with the procedures set forth in Supreme Court Rule 42. A final order or judgment in a civil case must be docketed by the clerk of the court below before a notice of appeal is filed with the Delaware Supreme Court.

In criminal cases, the Supreme Court has jurisdiction to hear direct appeals from the Superior Court only when the sentence imposed is either a sentence of death, imprisonment exceeding one month, or a fine exceeding $100. In direct criminal appeals, the Superior Court's final order in the case is deemed to be issued the day the defendant is sentenced, regardless of when the sentencing order is actually docketed. In postconviction appeals, as with civil appeals, the Superior Court's final order must be docketed before the notice of appeal may be filed with the Supreme Court.

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

Do I need a lawyer?

Individuals may appear before the Delaware Supreme Court without a lawyer. Corporations or other artificial entities are required to have a Delaware lawyer enter an appearance on their behalf.

Although an individual is not required to have a lawyer, most people find that having a lawyer on appeal is helpful to them. If you would like the assistance of a lawyer, you may be able to obtain legal assistance by calling Legal HelpLink at (302) 478-8850 (New Castle County) or (800) 773-0606 (Kent/Sussex Counties). Legal HelpLink is a central telephone number for several law-related agencies in Delaware, including Community Legal Aid, Delaware Volunteer Legal Services, the Legal Services Corporation, and the Lawyer Referral Service. These agencies provide legal services for a reduced fee or for free to qualified applicants.

If you pursue your appeal without the assistance of a lawyer, you still are required to 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 include the Delaware Rules Annotated (containing rules of all the Delaware courts), the Delaware Code Annotated (containing all Delaware statutes), the Atlantic Reporter (containing, among other things, published opinions of Delaware courts), and the Delaware Appellate Handbook. These resources are available at many public libraries and the Widener University School of Law library.

References: Supr. Ct. R. 12

When should I file my appeal?

You must file a timely notice of appeal in order for the Delaware Supreme Court to accept your appeal.

In most cases, except direct criminal appeals, a notice of appeal must be received by the Clerk of the Supreme Court within 30 days after entry upon the docket of the court below of 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 begins to run the day after sentencing for a direct criminal appeal or the day after docketing of the order appealed from for all other appeals. All days 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. 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 court below enters its final order and for computing the 30-day appeal period. Supreme Court personnel are not permitted to tell you when your notice of appeal is due or compute your 30-day appeal period for you.

The 30-day appeal period cannot be extended.

If a notice of appeal is filed by mail, it is not considered to be "filed" until the day the Supreme Court actually receives it.

In civil cases, any party may file a cross-appeal within 15 days of the filing of the first timely notice of appeal or within 30 days of the date of the final judgment or order from which the appeal is taken, whichever is later.

References: 10 Del. C §§ 143-49; Supr. Ct. R. 6; IOP XX.

How do I file a notice of appeal?

Two copies of the notice of appeal must be served, either by hand delivery or by mail, on the lawyer for each party to the proceeding below, or if a party does not have a lawyer, then upon the party directly. After service is completed, the original and two copies of the notice of appeal should be filed in person or by mail with the Supreme Court Clerk or any Deputy Clerk in any of the three counties.

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

  • the court, the judge, and the number of the case below;
  • the name of the party or parties taking the appeal, the name of the party or parties against whom the appeal is taken, and the name and address of each party's lawyer; if any party does not have a lawyer, then provide the last known address of that party;
  • the date of the judgment or order sought to be reviewed;
  • in a direct criminal appeal, the name of all codefendants with whom the appellant was tried;
  • lawyers for any parties against whom the appeal is not being taken;
  • any designation of transcript as required by Supreme Court Rule 9(e);

A copy of the final order being appealed from, and any separate written decision in support of it, should be attached to the notice of appeal.

The notice of appeal or cross-appeal must comply substantially with Supreme Court Official Form A or B as applicable.

Samples of a Notice of Appeal, a Notice of Interlocutory Appeal and a Certificate of Service are located at the back of this pamphlet.

References: Supr. Ct. R. 7, 42; IOP XX.

Why do I need to order transcripts?

If you need to refer in your brief to testimony or argument that was transcribed in the court below, you must designate 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 want to request the transcript, you must serve the appropriate court reporter with a copy of the notice of appeal and any attached directions. You must file with the Clerk of the Supreme Court a certificate indicating that the notice of appeal and directions were served on the court reporter and that the cost of the requested transcript has been paid or will be paid promptly. The party requesting the transcript is responsible for making arrangements to pay for the transcripts. Any questions regarding transcripts, including questions regarding transcript costs, should first be directed to the court below. 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 indicate 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 are located at the back of this pamphlet.

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

What does it cost to file a notice of appeal?

There is a non-refundable $450 filing fee and a $10 Court Security Assessment 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 generally is the only fee charged by the Supreme Court.

If you believe that you are indigent and are unable to pay the filing fee, you may file a motion to proceed in forma pauperis, which contains an affidavit of indigency. The personal information you provide in the motion and affidavit will help the Court decide whether you will be excused from paying the filing fee. A copy of the motion and affidavit, just like any document you file with the Supreme Court, must be served on the opposing party's lawyer, or the opposing party directly if the opposing party is not represented by a lawyer.

The Supreme Court may waive the $300 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 court below for transmitting the record on appeal to the Supreme Court. There also may be costs if you order the transcript from the proceedings below. None of these fees or costs, which are imposed by the court below, 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-filed appeal from a final order in the same case.

A sample Motion to Proceed In Forma Pauperis is located at the back of this pamphlet.

References: Supr. Ct. R. 20.

What is the record?

The record, consisting of all the original papers and exhibits filed with the court below, will be sent automatically by the court below to the Supreme Court Clerk's Office after the notice of appeal is filed and any 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 court below; docket entries; jury instructions; and all documents and exhibits admitted into evidence by the court below. Also, any evidence that you presented to the court below that was not admitted into evidence is considered to be 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 court below for its consideration.

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 court below and the argument is supported by the record.

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

How do I file a brief with the Supreme Court?

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 if a brief is filed by a lawyer on behalf of a party. If you are self-represented the Court will relax some of the rules regarding the form and content of your brief. However, even if you are self-represented, the Court will strictly apply the following rules:

  • You must sign an original copy of your brief and provide the required number of copies. Usually the Court requires an original plus eight copies of any brief.
  • You must not exceed the page limitation set forth in Rule 14(d), regardless of whether your brief is typed or handwritten, unless you first have requested and received from the Court a page extension prior to the date your brief is due.
  • You must file your brief on or before the deadline that is set forth in the scheduling notice you will receive from the Supreme Court Clerk's Office. If you need an extension of time to file your brief, you may file a motion for an extension, but you should do so prior to the date your brief is due.
  • You must be sure your brief is clearly legible, regardless of whether it is typed or handwritten.

The Opening Brief and Appendix

The opening brief is a written document explaining why you are appealing and what you think is wrong with the decision of the court below. The opening brief is limited to 35 pages, not including the appendix. A motion to exceed this page limitation will be granted by the Court only if you show a good reason.

The Clerk of the Court will send out a scheduling order informing the parties of the dates that briefs will be due. If necessary, you may request an extension of a due date by filing a motion for an extension of time with the Court in accordance with Supreme Court Rule 15(b).

A sample Motion under Rule 15(b) is located at the back of this pamphlet.

Although the Court will be flexible about the form and content of your brief if you are self-represented, you still should present your brief in as organized a fashion as you possibly can. It will be helpful to the Court in understanding your issues on appeal if you divide your opening brief into the following sections:

  • A table of contents;
  • A table of citations, which alphabetically lists all legal authorities cited in your brief;
  • The nature of the proceedings, which describes the lower court proceedings, including the judgment to be reviewed;
  • A summary of your arguments, which states in separate numbered paragraphs the issues you are raising on appeal;
  • A statement of the facts, including only facts that were presented to the court below and are supported by the record;
  • An argument section, which divides each of the issues you want to raise into separate subsections; and
  • A conclusion, which briefly tells the Court what remedy you are seeking.

You must attach to your opening brief a copy of the decision being appealed. It is helpful also to attach any unreported court orders or opinions that you cite in your opening brief.

The appendix to your opening brief should be a separately bound document. The appendix should include the lower court docket entries and whatever parts 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 with appendix, plus eight copies of the opening brief and appendix.

The Answering Brief and Appendix

The answering brief is the appellee's opportunity to tell the Supreme Court why the decision of the court below was the correct decision and should be affirmed. The answering brief and appendix are due 30 days after service of the opening brief and appendix. The answering brief also is limited to 35 pages, not including the appendix. It should include all of the same sections discussed 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.

The Reply Brief and Appendix

If you are the appellant, you may file a reply brief in response to the appellee's answering brief, although a reply brief is not required. The reply brief is due 15 days after service of the answering brief and is limited to 20 pages. The reply brief should not contain any new arguments or issues, nor should it repeat what you said in your opening brief. 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.

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

What is a motion to affirm?

A motion to affirm allows the Supreme Court to quickly dispose of appeals that have no merit. After the appellant files the opening brief, the appellee may choose to file a motion to affirm instead of filing an answering brief. The appellee's motion to affirm is limited to 4 pages and is due within 10 days of service of the opening brief. The due date of the answering brief will be suspended until the Court rules on the motion to affirm.

No response to the motion to affirm is permitted unless the Court requests it. If a response is filed without the Court's permission, it will be stricken as a non-conforming document under Supreme Court Rule 34.

Motions to affirm are governed by Supreme Court Rule 25. That Rule provides that the Supreme Court may grant a motion to affirm for any of the following reasons:

  • The issue on appeal is clearly controlled by settled Delaware law;
  • The issue on appeal is factual and clearly there is sufficient evidence to support the jury verdict or findings of fact below; or
  • The issue on appeal is one of judicial discretion and clearly there was no abuse of discretion.

If the three Justices on the panel deciding the motion all agree that the appeal is without merit, the motion to affirm will be granted without any further briefing. If the motion to affirm is denied, however, the briefing schedule will resume. The appellee's answering brief will be due within 20 days after the date of the Court's order denying the motion to affirm.

References: Supr. Ct. R. 25, 34.

When will the Supreme Court decide my case?

If no motion to affirm is filed, your case will be scheduled for decision by a panel of the Court after the answering brief is filed. If the issues raised in the briefs are novel or difficult, or if it would be helpful to the Court, 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: Supr. Ct. R. 16, 17.

What can I do if I lose on appeal?

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. You may file with the Court, however, either a motion for reargument or a motion for rehearing en banc. A motion for reargument is a request to the same three-Justice panel 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 the case for the first time. A motion for rehearing en banc can be requested only for the following reasons:

  • The proceeding 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 filing of the Court's final decision in the case. As with any motion, motions for reargument or for rehearing en banc are limited to 4 pages. Motions for reargument or rehearing rarely are granted in any case 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 pamphlet and the jurisdiction of this Court.

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