Delaware Supreme Court Rules: Appeals, Briefs, and Deadlines

The Delaware Supreme Court rules set the deadlines, formats, and procedures every appeal must follow, from the 30-day window to file a notice of appeal through the formal mandate that closes the case. The rules are published by the court itself and apply to appeals from the Court of Chancery, Superior Court, and Family Court.¹ Miss a deadline or botch a filing requirement and the court can dismiss your appeal before anyone looks at the merits.

Deadlines to File an Appeal

Rule 6 controls the clock. In civil cases, criminal convictions, and post-conviction proceedings, you must file your notice of appeal within 30 days of the lower court’s judgment or order. For a final award under the Delaware Rapid Arbitration Act, you have only 15 days from the date the award is issued.²

This deadline is jurisdictional. Once it passes, there is very little a judge can do to rescue your appeal.

Cross-Appeal Windows

If the other side files first and you also want to challenge part of the ruling, the cross-appeal deadlines are tighter. In civil cases, the cross-appeal must be filed within 15 days after the first notice of appeal was filed, or within 30 days after the judgment was entered, whichever is later. In criminal cases, the state has 30 days from the defendant’s notice of appeal. For arbitration challenges, the cross-appeal must be filed within 7 days after the first appeal was served, or 15 days after the award was issued, whichever is later.²

What Goes in the Notice of Appeal

Rule 7 lists what the notice must contain. You identify the court below, the judge who entered the decision, and the case number. You name the parties on both sides along with their attorneys of record. You designate the specific judgment or order you are challenging and its date.²

Two items catch filers off guard. If the appeal is being filed more than 30 days after the judgment because you believe the clock was tolled, the notice has to explain the factual and legal basis for that tolling. You also need to include transcript designations required by Rule 9(e) and attach a copy of the order or judgment on appeal. If the written order is not yet available, say so in the notice. The filing must follow the format of Official Forms A and B, available from the Clerk’s office.²

Filing Fees

Filing an appeal or cross-appeal costs a flat, non-refundable $500, plus a $10 Court Security Assessment, due when you file the notice. That is generally the only fee the court charges. If you cannot afford it, you can file a motion to proceed in forma pauperis with an affidavit describing your financial situation, and the court decides whether to waive the fee.³

Electronic Filing

The court requires electronic filing through File & ServeXpress, the same platform used by the Court of Chancery and Superior Court.⁴ Under Rule 10.1, civil appeals from the Court of Chancery and Superior Court must be filed electronically.⁵ The system serves opposing parties automatically and stamps the official filing time. Electronic signatures and file formats must meet the Clerk’s technical specifications. Noncompliant documents can be rejected or lead to sanctions.

Who Can Represent You

Only attorneys admitted to the Delaware Bar and in good standing can appear before the Supreme Court. Out-of-state lawyers can apply for pro hac vice admission under Rules 71 and 72 by written motion filed through a Delaware-licensed attorney who agrees to serve as local counsel. Local counsel is not a formality: that attorney must sign or receive service of all papers and attend all proceedings unless excused.²

You can also represent yourself. Pro se parties are held to the same procedural rules as attorneys, with a few accommodations. If you do not have a word processing program, you can submit handwritten briefs and the court applies page limits instead of word-count limits. Pro se parties also must attach a certificate of good faith on certain motions, confirming the filing is not for delay.²

One warning for pro se appellants: if you fail to respond to a show-cause notice asking why your appeal should not be dismissed, or if you miss a court-ordered deadline, you are treated as having consented to termination of the case.² The court will not chase you.

Briefs and the Appendix

Rules 13 and 14 govern how briefs look and how long they can run.

Formatting

Briefs use Times New Roman 14-point typeface, double-spaced, on pages no larger than 8½ by 11 inches, with margins of at least one inch on all sides. Block quotations longer than 50 words and footnotes may be single-spaced. Each brief is firmly bound at the left margin in a transparent plastic cover and must include a table of contents and a table of citations listing every case and statute relied on.²

Length Limits

For represented parties, the court uses word counts. An opening or answering brief cannot exceed 10,000 words. A reply brief cannot exceed 5,500 words. In cross-appeals, a combined answering and opening brief can run up to 14,000 words. Every brief must include a certificate of compliance stating the word count.²

Unrepresented parties without access to a word processing program use page limits instead: 35 pages for an opening or answering brief, 20 pages for a reply, and 50 pages for a combined answering and opening brief in a cross-appeal.²

The Appendix and Transcripts

With the opening brief, the appellant files an appendix containing the relevant portions of the lower court record and any trial transcripts the justices need to evaluate the alleged errors. Transcripts must be ordered within 10 days of filing the notice of appeal to avoid scheduling delays.²

Oral Argument

Not every appeal gets oral argument. The court decides based on the briefs and the record whether a hearing is necessary. When argument is scheduled, each side gets 20 minutes before a three-justice panel and 25 minutes per side when the full five-member court sits en banc. Most cases go to a panel of three, assigned on a rotating basis by the Chief Justice.² Arguments must stay within the issues raised in the briefs; new theories are not welcome at the podium.

Interlocutory Appeals

Most appeals come after a final judgment, but Rule 42 lets you seek review of a lower court order before the case is over. The process has two gates.

You first apply to the trial court for certification of the interlocutory appeal within 10 days of the order you want to challenge. The opposing party has 10 days to respond, and the trial court has another 10 days after the response to certify or refuse the appeal.²

Second, the Supreme Court itself must accept the appeal. You file a notice of appeal within 30 days of the challenged order no matter where the trial court’s certification process stands. If you file the notice before the trial court has acted, you file a supplementary notice within 10 days after it rules. The Supreme Court then decides, without further argument, whether to take the case.² Filing an interlocutory appeal does not automatically pause proceedings below.

Stays Pending Appeal

Filing an appeal does not stop the lower court’s judgment from taking effect. If you need the judgment paused, Rule 32 requires you to ask the trial court first.² The trial court keeps jurisdiction over the initial stay request even after the appeal has been filed.

A stay is generally available if you post sufficient security, usually a supersedeas bond. For money judgments, the bond typically covers the full amount of the judgment plus costs and any damages caused by delay. The trial court can accept a lower amount or a different type of security if you show the standard bond is unnecessary. If the trial court denies your stay request, you can ask the Supreme Court to review that denial.²

Rehearing and the Mandate

Rehearing En Banc

If a three-justice panel decided your case and you believe the outcome is wrong, you can move for rehearing before the full court within 15 days of the opinion or order. The motion must be concise, state its grounds clearly, and include a certificate that it is filed in good faith and not for delay. At least two justices must vote in favor for rehearing to be granted, and only on narrow grounds: the case raises a question of exceptional importance, rehearing is needed to maintain consistency across Supreme Court decisions, or the case is controlled by a prior decision that should be reconsidered.²

There is no oral argument on the motion, and you cannot file a response unless the court requests one. If the panel’s decision directed that the mandate issue immediately, rehearing en banc is not available. If your rehearing motion is denied, you cannot follow up with a motion for reargument of that denial.²

The Mandate

The mandate is the court’s formal instruction to the lower court. Under Rule 19, it issues automatically once the time for filing a motion for reargument or rehearing expires with no motion filed. If a motion is filed, the mandate waits until it is resolved. The mandate directs the lower court to affirm, reverse, or modify the judgment and specifies how costs on appeal are assessed.²

When the Supreme Court remands a case for further proceedings, the trial court generally must act within 60 days of receiving the certified decision. If that is not feasible, the trial court must file a status report, and the Supreme Court may set a new deadline.²

1
Delaware Courts. An Overview of the Delaware Court System
2
Delaware Courts. Rules of the Supreme Court of the State of Delaware
3
Delaware Courts. Supreme Court Notice of Appeal Filing Fee
4
Delaware Courts. Electronic Filing in the Delaware Judiciary
5
Delaware Courts. Supreme Court Rule 10.1