Delaware is arguably the premier venue for litigating all matters corporate, and its judges are very familiar with a panoply of corporate disputes. There are far fewer construction disputes that are venued in Delaware, but if you find yourself there, here are some considerations and quick facts:
Be aware that Delaware is one of the few jurisdictions that retains a division between courts of equity and of law. The Court of Chancery has exclusive jurisdiction over equitable claims, but it can exercise jurisdiction over legal claims so long as there is at least one equitable claim in the lawsuit. The Superior Court has jurisdiction over legal claims only. Because many construction lawsuits involve contract claims only, such claims will likely be venued in Superior Court (absent diversity to get into federal court). If your dispute exceeds $1 million, then your matter will be adjudicated before a judge assigned to the Complex Commercial Litigation Division (CCLD) for Superior Court. The CCLD was designed to streamline commercial litigation in Superior Court. The judges tend to be savvy on e-discovery issues and will be amenable to arguments that discovery is overly broad or unduly burdensome in comparison to its relevance. Note that your Superior Court judge has a quarterly civil and criminal rotation, which affects scheduling of various matters, including trial.
The bar in Delaware, federal and state, is high-caliber, active, and close-knit. Judges and lawyers attend Inns of Court and other legal functions regularly, so expect that your local counsel knows the judge and opposing counsel well, has litigated with them before, and expects to do so again in the future when your case is over. This means the bar is highly civil. If you’re looking for local counsel with a brass-knuckles approach, file your suit elsewhere.
Judges in Delaware have an expectation that your local counsel be active in your matter. While Delaware is certainly not inhospitable to pro hac’ed counsel, using your local counsel as a drop-box generally does not play well there. Expect to involve your local counsel so that they can, for example, argue meaningful motions and be involved at trial. You will find a number of very able litigators, but it is harder to find someone who specializes in construction litigation matters, particularly in the larger firms based in Wilmington.
Both the Court of Chancery and the Superior Court have active judges who move matters along quickly. The Court of Chancery typically moves cases faster than the Superior Court, but neither court is a laggard when it comes to hearing and ruling on motions.
Delaware has no intermediate court of appeals. Appeals go straight from the Court of Chancery or the Superior Court to the Delaware Supreme Court. Generally speaking, the Supreme Court has broad mandatory review so an appeal from a lower court in a construction dispute is likely to be had.