Judicial Preferences

Judge Ferris W. Wharton Civil Case Management Preferences

Updated: June 30, 2023

For Attorneys & Legal Staff Only:

Lori Doto, Administrative Specialist
Chambers
Phone: (302) 255-0657

Valerie Petracca, Judicial Civil Case Manager
Prothonotary's Office
Phone: (302) 255-0706

Fax Numbers:

* 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.

Communications

Only counsel, not legal staff, may write directly to Judge Wharton. All correspondence must be signed by an attorney in the law firm of the attorney of record.

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 Wharton except when (a) Judge Wharton 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 Wharton if not appropriate to send to staff.

Substantive emails are docketed and must always include the civil action number.

Comments or questions from lawyers, paralegals and other legal staff about Judge Wharton's preferences are welcome.

Initial Stages

Related Cases:

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.

Initial Scheduling Conferences:

After responsive pleading(s) are filed and/or default judgment(s) entered, Judge Wharton's Administrative Specialist will establish a scheduling conference. The Scheduling Conference Letter (SCL)will be sent to counsel and/or self-represented parties setting a time for the conference within about 6 to 8 weeks after answers are filed and/or default judgments are entered. Scheduling Conferences are usually held in chambers, except when a party is self-represented. In that case, conferences are held in a courtroom.

If appropriate, counsel should confer about potential mediators before the Scheduling Conference. A directory of court-trained mediators is available on the Court's Web site. Counsel attending the Scheduling Conference should have authority to agree to a specific mediator, if at all possible.

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.

Note: Judge Wharton understands that the establishment of a trial date with related deadline dates can be helpful to resolve cases, even those that are likely to settle promptly. Counsel should proceed with the initial scheduling conference, even if prompt settlement of the case is likely, if any attorney in the case believes that a trial date with related deadlines will help resolve the case.

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 is scheduled only after all defendants or third-party defendants have (1) filed responsive pleadings or (2) had default judgments entered against them.

Judge Wharton's goal is to establish a Trial Scheduling Order (TSO) that (1) sets the earliest feasible trial date and (2) is best suited to the dynamics of the particular case. A scheduling conference is the best possible way of achieving this goal and the objectives of the March 28, 2000 Superior Court Civil Administrative Order.

Scheduling Conferences involving Kent or Sussex County counsel may be held by teleconference, if requested. However, Judge Wharton's preference is that counsel be present.

At least one attorney per party admitted pro hac vice must participate in the scheduling conference, either by phone or in person.

If mediation resolves the case, counsel for plaintiff(s) should promptly so notify the Civil Case Manager by email or letter.

Trial Scheduling Orders:

Judge Wharton 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 'double-book' counsel for trial as long as all counsel understand 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 Wharton may take appropriate action to accelerate this process pursuant to the Superior Court Appellate Administrative Order, March 21, 1995.

Oral argument on administrative appeals will be held at the Court's discretion.

Motions & Briefing

Formatting:

All motions shall be formatted in the manner set forth in Superior Court Civil Rule 78(b). All briefs shall be formatted in the manner set forth in Superior Court Civil Rules 107(b), (d), (e), and (h). Exhibits to briefs, courtesy copies of motions, or letters must all be individually tabbed. No briefs, exhibits, or appendices may be clipped or fastened with paper clips or binder clips, but must be stapled, bound or secured in metal three-ring binders.

Case citations shall use Westlaw format for unreported decisions where possible; the Superior Court does not presently have ready capability to utilize Lexis. 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. If a motion is filed in the form of numbered paragraphs, the response should not be in the style of an answer to a complaint ( i.e., Admitted in part; denied in part. By way of further answer [etc.] ), but rather each numbered paragraph in the response should set forth the arguments in a manner that does not require simultaneous side-by-side review by the judge of the motion's numbered paragraphs to understand the response's numbered paragraphs.

Routine Motions:

Routine Motions are defined in Paragraph IV.B.3.a. of the NCC Plan. Judge Wharton hears routine motions every Monday at 9:00 a.m. Any attorney should contact Judge Wharton if that attorney believes the complexity or length of the argument suggests that another date would be more feasible.

Routine Motions must be filed 10 (ten) days prior (excluding weekends and holidays) to the noticed date. Responses are due the Wednesday prior to presentation. A motion to continue a trial date shall be scheduled as a routine motion.

If counsel does not oppose a routine motion, counsel who does not oppose, should so notify the Court by letter. If possible, an unopposed motion should represent that lack of opposition in the motion itself (if such lack of 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 Wharton may refer substantive non-routine discovery motions to a commissioner. The commissioner will schedule a hearing date. Counsel will be advised if the motion has been referred to a commissioner.

Questions regarding routine motions should be addressed to the Civil Case Manager.

Dispositive Motions:

All Dispositive Motions and Motions in Limine, including Daubert motions, must be filed by the deadline established in the TSO or if no TSO has been issued, by the time established by Superior Court Civil Rules. All motions should be noticed "At the Convenience of the Court." The Civil Case Manager will issue a letter via LexisNexis e-file, informing counsel of the response deadline. Neither the motion nor the response shall exceed six (6) pages in length unless permission has been granted previously to exceed the page limit. No reply by the moving party is permitted.

The original motion, response, and reply should be e-filed with two (2) courtesy copies promptly delivered to chambers.

If no response is timely filed, the Court may deem the motion unopposed and grant the motion. Contrary to the NCC Plan at IV.A.2.c., an appendix may exceed 25 pages as necessary.

Pretrial/Evidentiary Matters

Pretrial Stipulations:

Counsel are 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.

Pretrial Conferences:

Ordinarily, proposed jury instructions must be filed with the Pretrial Stipulation and may be discussed at the Pretrial Conference. This can help to focus the parties and the Court on the way legal issues will be formulated at trial.

Trial counsel, including pro hac vice counsel, must attend the Pretrial Conference. For good cause, such as distance and/or the nature of the case, pro hac vice counsel may be permitted to participate by phone.

Pretrial Conferences are reported.

Motions In Limine:

Any particularly significant issue, including Daubert issues, should be raised by motion in limine. Motions in limine are usually filed and responded to before the Pretrial Conference.

There is no bright line test for whether a legal or evidentiary issue should be (1) raised by a motion in limine, (2) simply identified in a Pretrial Stipulation, or (3) not mentioned at all (if truly minor). If the issue is particularly significant and should be resolved at the Pretrial Conference, a motion in limine should be filed.

The Court will usually rule on all motions in limine at the Pretrial Conference, unless resolution at trial, or some later time, is more appropriate.

Trials & Courtroom Proceedings

Basic Precepts:

Counsel should familiarize themselves with and abide by the courtroom professionalism standards adopted by the Court in 2004. View: Expectations of the Superior Court for Attorneys' Professionalism in a Courtroom Setting (April 18, 2004).

Local counsel is expected to attend trial, but may be excused for good cause. However, if circumstances develop at trial, Judge Wharton may require local counsel to attend, and/or actively participate, in the remainder of the trial.

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 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). Beginning and ending times may be adjusted as warranted. However, in no event will trial conclude after 5:00 p.m. Judge Wharton will usually meet with counsel in chambers at 9:30 a.m. on the first day of trial.

Counsel desiring a courtroom with specific technology support should contact the Bailiffs' Office (302) 655-0586 or (302) 255-0587 several days before the trial.

Counsel intending to use demonstrative evidence during opening statements should confer with opposing counsel several days before the trial and seek to resolve any issues regarding such evidence.

Court submissions that are likely to be revised by the Court, i.e., proposed jury instructions and verdict sheets, should be submitted at the Pretrial Conference on a CD in WordPerfect or Word format.