Interview with Delaware Supreme Court Chief Justice Myron Steele

Chief Justice Myron T. Steele of the Delaware Supreme Court kindly agreed to be interviewed for this blog. We are certain that our readers will be very interested in the comments of the Chief Justice that will provide insights into His Honor’s background, as well as his view of Delaware jurisprudence and Delaware practice and customs.

Blog: Thank you very much Your Honor for scheduling the time to be interviewed for the blog. We appreciate it very much.

Chief Justice: My pleasure.

Background Questions

Blog: You have an undergraduate degree and two law degrees from the University of Virginia. How did you first select UVA for your undergraduate studies? What was the path from UVA to Delaware?

Chief Justice: I selected UVA in part because of Thomas Jefferson’s role in the formation of UVA, his emphasis on realism and the fact that Thomas Jefferson is one of my heroes. As for my path from UVA to Delaware, I was interviewed on campus by Rod Ward. Professor Ernest Folk recommended me to him. Professor Folk played a major role in Delaware corporate law. He drafted the revision of the Delaware general corporation law in 1967. His recommendation resulted in an offer from the Prickett firm where I stayed for 18 years.

Blog: You spent many years in the military, retiring as a Colonel. How has your military experience shaped your view of the law, or life in general, if at all?

Chief Justice: My father was an army officer and that caused me to join the ROTC. My father would have been disappointed if I did not join the military in some capacity. After law school, I spent time at Ft. Benning, and thereafter I spent the balance of 24 years in the National Guard. The military background provided me with a discipline and regimentation that is hard to escape.

Blog: You wrote your LL.M. thesis on LLC issues and you have been on the cutting edge of scholarship in the area. Do you expect to write any more articles on the topic—in addition to court opinions?

Chief Justice: Professor Ann E. Conaway from the Widener University School of Law and I are writing a treatise on alternative entities that we expect to be published in 2010. We both share a “contractarian” view of the law and I expect to continue writing more about the principles of freedom of contract. I differ with a view that supports the imposition of moralistic, normative regimes into contract formation.

Blog: You recently hosted foreign lawyers and judges at your horse farm in Kent County. How often do you host foreign dignitaries and others at your farm?

Chief Justice: We need to increase our international focus and so I try to take the opportunity to befriend lawyers and judges from other countries whom I meet, and invite them to my home. A personal touch is more conducive to building relationships that will benefit Delaware.

Blog: You spend a fair amount of time "promoting Delaware law" in other states and in other countries. Is that something you enjoy or is that part of your role as Chief Justice?

Chief Justice: It’s important to let people know about Delaware law and to correct the inaccurate view that some have that Delaware is pro-management. The message needs to be sent that Delaware courts are balanced. I enjoy the substantial amount of time I spend in my role as a Delaware “ambassador” but it is also part of my role as the Chief Justice. I spend “most weekends” as a guest at seminars sponsored by law schools or bar associations, both in the U.S. and around the world. I recently spent a week in California speaking about Delaware law at different conferences and law schools.

Judicial Career

Blog: What would you say are the highlights of your tenure on the Superior, Chancery and Supreme Courts?

Chief Justice: In the Superior Court, there was more interaction with the community and there were a broader cross section of the members of the Bar that practiced in that Court. During my tenure on Chancery, there was a greater discipline required to get decisions out quickly in addition to explaining the reasoning for those decisions. The Supreme Court is more of an intellectual challenge and I enjoy the interaction with the four scholars on the Court. We are presented with challenging issues that Delaware lawyers present arising from truly difficult cases.

Blog: What would you say are the least enjoyable parts of being the Chief Justice?

Chief Justice: The least enjoyable part of my job has to do with budget related issues that require me to request money from the Legislature. Much like the matters that a CEO of any organization needs to tackle, the administrative and personnel issues are the least favorite part of my duties.

Blog: Of the many decisions you have written during your tenure – - which were, in your view, the most memorable or most notable?

Chief Justice: The top four cases I would select for special mention are the 2005 case in Doe v. Cahill which is a seminal decision on defamation in the context of blogging, and defines the standard to be applied before a blogger can be sued for defamation. I understand that this case is taught in law schools and is a path breaking decision in this increasingly important area.

The next two cases are the OmniCare v. NCS Healthcare, Inc. case and State v. Cooke, in which I authored dissents. The Cooke case may likely be reviewed by the United States Supreme Court and deals with the issue of whether counsel or client controls the defense in a capital case. The fourth case would be the series of decisions in the Cantor Fitzgerald matter in which I wrote 56 opinions within the span of approximately one year, and sat on a 90-day trial.

Blog: What changes have you observed over your tenure regarding: (1) the lawyers practicing before you; (2) the cases filed with the Court; and (3) changes in the legal profession in general.

Chief Justice: The Bar is much more diverse than it was in 1970 or even in 1990 and it is becoming increasingly so, which is a positive factor. The volume of cases is higher but the nature of the cases is not that much different, although the Superior Court has many more complex capital cases that raise issues of potential delay. In general, the legal profession in my view is just as collegial as it was in the past, at least in the courtroom. One change I have noticed is that younger lawyers seem to change firms much more frequently than they did in 1970. This is a troublesome development because of the reasonable inference that the change among firms is economically driven, which makes our practice appear more like a business as opposed to a profession and might make one wonder why firms cannot keep their associates longer. The collegiality that the Delaware Bar is famous for is based less on the pursuit of lucre than on maintaining one’s reputation.

Practice Pointers

Blog: What advice or suggestions can you give to lawyers who are appearing before the Supreme Court, and who may not have years of experience appearing before the Supreme Court?

Chief Justice: The three basic tips I would give those that appear before the Delaware Supreme Court are the following: (1) Argue the cases that you actually tried. That is, it is better not to have separate attorneys for trial and appeal. (2) Know the record below very well. (3) Focus on your best argument and get to the point directly and forget about other matters such as the “standard of review” which we all know very well. A rifle approach is much more effective than a shotgun approach.

Blog: What are some of the things that you would encourage lawyers to avoid doing if they want to decrease the odds of incurring the displeasure of the Court especially on procedural matters?

Chief Justice: There is a relatively new rule that we adopted from Virginia that requires the parties to cite where in the record the appellate argument was raised below. For example, the appendix must include where in the record the issue below was raised.

Blog: For those who serve as local counsel, what tips can you give them – - and in particular what messages, if any, would you like to send to the lawyers from out-of-state who have not been before you, and who may not be familiar with Supreme Court practice?

Chief Justice: Make sure that out-of-state counsel thoroughly understands: (1) The record below; (2) The rules of court; and (3) that the Court thoroughly enjoys oral argument. The questions that are asked will suggest what interests the Court; and the questions are not designed to trick anyone but are designed to find out more about what concerns the Court regarding the particular case.

Blog: How would you respond to the comment of some scholars that there are too many “standards of review” under Delaware corporate law, which in turn leads to indeterminacy?

Chief Justice: Different standards are needed to address different factual situations, but that does not necessarily result in indeterminacy. There is a rational basis for using different rules for different situations. Indeterminacy as to which standard applies should not mean that it is unpredictable to know which standard applies. If one is familiar with Delaware law, the applicable standard should be clear.

The Future

Blog: With other states now starting there own “business courts,” and the federal government always threatening to increase their regulation of corporate law, how would you predict the impact of those factors on the role of Delaware corporate law, and in particular, Delaware corporate litigation, over the next five to ten to fifteen years?

Chief Justice: There are about 16 other business courts in the U.S. but none have the combination of “summary proceedings,” and the judicial selection process, and the body of caselaw that we have in Delaware. No other states are seen as competitors for our business courts and we even help other states with their business courts. The federal encroachment is a separate issue and my position on that is well known. One of the benefits that the judge-made law in Delaware benefits from, that is not true of legislation in the United States Congress, is that Delaware judges are insulated from the political pressure that a Congressman must address. Delaware benefits from a system that requires the appointment of judges and the Delaware constitutional requirement of a judiciary that is balanced by party. By contrast, Congress does little dispassionately. It is not easy to predict what Congress’ next move in this area might be or when it might come.

Blog: Thank you again Your Honor for taking time from your busy schedule to allow us to interview you.

Chief Justice: You’re welcome.

Update:  Professor Bainbridge’s blog here, and the Delaware Employment Law Blog here  have graciously linked to this interview. The M & A Law Prof Blog linked it here. The Defining Tension blog comments on the interview here. DealLawyers.com links to it here.