Kevin F. Brady of Connolly Bove Lodge & Hutz LLP, provides us with a detailed interview with Chancellor William Chandler on His Honor’s last official day at the helm of the Delaware Court of Chancery.
1) Your undergraduate degree is from the University of Delaware. Do you have fond memories of your days as a “Fightin’ Blue Hen”?
I have many fond memories of my undergraduate days in Newark, and still enjoy visiting the campus. In fact, my wife (also a UD graduate, class of 1973) and I have been season ticket holders for years and attend every home football game, and many away games as well. Both of our children graduated from UD. I majored in philosophy and political science, although I also spent a fair amount of time following my wife (my girlfriend at the time) around campus, and may have earned an “unofficial” degree in art history (her major) as well! Two mentors, Professor James Soles in the political science department and Professor Don Harward in the philosophy department, made a lasting impression on me and I am very fortunate to have studied under them. As it turned out, Professor Soles also became a lifelong friend and advisor who played a pivotal role in my life and career. It is impossible to overstate how valuable and influential my experience at the University of Delaware has been to me and to my family. I am especially grateful that I am able to repay the University, in some small way, by now serving on its Board of Trustees.
2) After you left the University of Delaware, you went to University of South Carolina for law school, and then you came back to Delaware to clerk for Chief Judge James Latchum. What were those experiences like, and did your clerkship with Judge Latchum leave any indelible marks on you?
My wife attended the graduate library program at the University of South Carolina while I attended law school. We both enjoyed our years in Columbia, which is the capital of South Carolina, and loved making so many friends in South Carolina, which is a beautiful state. We had no money at the time, so we spent evenings after classes ended walking across campus in search of empty soda bottles that we could collect the deposit on, and at the end of the week we would have gathered enough deposit bottles to splurge on a pizza, or a special treat at Morrison’s Cafeteria. But we had a wonderful time in Columbia for those three years. After law school, my two-year clerkship with Chief Judge James L. Latchum was another life-changing experience, both because I learned so much from a great judge and because Judge Latchum was personally close to all of his law clerks, becoming a lifelong mentor to many of us. He combined a keen intellect, wonderful sense of humor and incredible grasp of the law with a down to earth and pragmatic approach to legal issues. One of the many lessons I learned from Judge Latchum was to think carefully about the practical implications of a decision on the parties, as well as on the law in general. In a very real sense, his example as a judge and person still influences and guides me today. And as you can see from this answer, and my previous answer, there are a great many people to whom I am deeply indebted for whatever success I have had in my professional career and life.
3) Is that when you first met Vice Chancellors John Noble and Don Parsons?
Yes, John Noble was the “senior” clerk for Judge Latchum when I arrived for the first year of my clerkship in August of 1973. The following year, I became the senior clerk, and Don Parsons arrived to begin his clerkship with Judge Latchum. Don went straight to Morris, Nichols Arsht & Tunnell after his clerkship, while John returned to Dover to form Parkowski & Noble. I was the “outlier”–deciding to return to law school (this time, Yale) to pursue more education and a law teaching career. I’m not sure Judge Latchum agreed with my decision to return to law school at the time, but he was totally supportive of my effort, and we stayed in contact in the ensuing years. In addition, as noted below, I eventually ended up at MNAT as well. By the way, the clerks for the district court in those days were a diverse and gregarious bunch, and included other notable Delawareans such as Charlie Oberly and Bill Manning. And all of us knew that we were fortunate to have the opportunity to clerk for an amazing group of judges, consisting of Judges Latchum, Schwartz, and Stapleton, as well as Senior Judges Steele, Layton, and Wright.
4) You joined the Superior Court in 1985, and before that you were in private practice with Morris Nichols. What were those experiences like?
Morris Nichols hired me after I left as Legal Counsel to Governor Pete DuPont (which was another life-changing experience for me), and I am lucky that I worked directly with Randy Holland (as well as having the opportunity for occasional assignments with Frank Biondi). Morris Nichols provided me with so many different opportunities, both in the legislative process in Dover as well as in litigation in every court in the state—from Justice of the Peace to the Supreme Court. I even had the opportunity to testify as an expert witness in the United States District Court! It was quite an all around experience that has served me very well over the years. In particular, I learned more than I have time to describe here about the day to day practice of law–and professionalism in general–from Randy Holland. He is another individual, like those I have mentioned earlier, who helped influence and shape my life, and to whom I am forever indebted.
5) In 1989, while you were on the Court of Chancery, you were nominated to serve as a judge on the District of Delaware. What happened that you ended up turning that down? What do you think you would have liked about the District Court that you would not have experienced on the Court of Chancery?
I was recommended for the vacancy on the United States District Court in 1989 by the late Senator Bill Roth, just six months after I had been appointed to the Court of Chancery. I’m not exactly sure why Senator Roth recommended me to the President for appointment, but I assumed it had something to do with wanting geographical diversity on the District Court, since I was from Sussex County, and the fact that I had clerked on the District Court (and I would not be at all surprised if Judge Latchum was working behind the scenes, putting in a strong endorsement for me, probably every day that Judge Jane Roth rode up on the elevator with him to their 4th floor offices! I can just hear Judge Latchum now—“Jane, let me tell you why the Senator should recommend Bill Chandler for this vacancy . . .”). I probably disappointed Judge Latchum by eventually turning down the district court appointment, which I did for family reasons (though it is a decision I have never regretted making, as remaining in Sussex County enabled me to spend the last years of my father’s life next door to him where my children could get to know and learn so much from their grandfather). One thing that I believe I would have enjoyed about the District Court that you cannot experience on Chancery is the interaction with jurors. I enjoyed the “ordinary, down to earth people” aspect of work in the Superior Court while I was a judge there, and I think it would also have made the District Court experience very special for me.
6) What would you say are the highlights of your tenure on the Superior Court? Court of Chancery?
The highlights of my Superior Court experience were working with the loyal and skilled Superior Court staff—the unsung heroes of every court—who work very hard every day to serve the public and to support the judges. In addition, the judges on that Court—wonderful judges like Vince Bifferato, Bernie Balick, Bill Bush, Clarence Taylor, Josh Martin and many, many more too numerous to name—were incredibly helpful and supportive to me as a very young lawyer stepping up to serve on a court where, literally, you hold the power of life and death and freedom in your hands.
Chancery is much the same as Superior Court in that it has an incredibly loyal and dedicated staff that takes great pride in the Court and its reputation. I am fortunate to work with them, and grateful to them for all they do to help maintain Chancery’s reputation for fair and prompt decisions, and for the courteous and efficient manner in which they serve the public. I also consider it a privilege to have served with every single one of my colleagues on this Court over the past 21 years, including my previous colleagues Bill Allen, Mo Hartnett, Carolyn Berger, Jack Jacobs, Bernie Balick, Myron Steele, Steve Lamb—and now all of my current colleagues (Vice Chancellors Strine, Noble, Parsons and Laster), as well as the Masters, from Richard Kiger on through Sam Glasscock and Kim Avyazian. Each one of my colleagues qualifies as a “highlight” of my service on the Court, and I am fortunate to have been in a position to work with them and learn from them.
7) What would you say are the most enjoyable parts of being the Chancellor – and what are the aspects that you enjoyed the least?
I most enjoyed the never ending stream of interesting intellectual problems offered up by the most talented and creative group of practitioners found anywhere in this country. Chancery is blessed to have so many skilled and talented lawyers practicing in it every day, and the caliber of work they do, often under extraordinary time pressure, is simply amazing. In a very real sense, this fantastic cadre of regular Chancery practitioners is an important, perhaps indispensable, reason this Court is able to perform at the level it does. They make this Court, and my job, truly enjoyable. I might add, I try never to lose my patience with arguments or positions taken (and when I do I always regret it), and I am convinced that there are few instances when that happens precisely because of the extremely high caliber of professionals who practice their craft in the Court of Chancery.
The least enjoyable aspect of being Chancellor? Well, as you might guess if you know me at all, if forced to pick something, I probably would say it is the purely administrative aspect of the job—the part where the Chancellor must deal with the increasingly bureaucratic side of the judicial system, with the budgetary process or with the “committee work” aspects of the job. This is a weakness on my part, and I openly confess it. As Clint Eastwood once said, “a man has to know his limitations.” Well, this is one of mine, for sure. In addition, the Chancellor appoints personnel to, and has supervisory authority over, certain agencies (such as the Office of the Public Guardian, or the chief deputy of the Register of Wills) and these responsibilities seem to increase in their time demands every year. Finally, the Chancellor also serves (by virtue of a provision in the Delaware Constitution) on the Delaware Board of Pardons, a public body that meets for virtually an entire day every month to hear pardon/commutation applications. I also probably would not rank this high on the list of fun and enjoyable aspects of my work, although I do recognize it as a serious and important constitutional obligation of the Chancellor.
8) Why did you want to change from Superior Court to the Court of Chancery?
I realized after just four years on the Superior Court that I was not going to be given many opportunities (or much time) to think and write about important and difficult legal questions. The Superior Court confronts many complex legal questions, but it is increasingly a decisional court, one that must quickly decide issues from the bench and move on to the next case or the next issue. And you are on the bench most of the time, dealing with an incredible array of legal questions, from civil law to criminal law to administrative law. There would be no opportunity for me to specialize and become expert in anything on the Superior Court, while on the Court of Chancery I would be able to write more and develop some degree of expertise in one or two areas of the law. Moreover, as an associate with Morris Nichols, I spent most of my time trying cases in the Court of Chancery, before Chancellor Brown and then-Vice Chancellors Longobardi and Walsh. I had good memories of my experiences in Chancery as a practitioner, and my friend Bill Allen was Chancellor in 1989 and encouraged me to apply as well. Finally, I had already begun to see in the Superior Court, after only four years of service there, that I recognized many of the same unfortunate individuals return to be processed by the system over and over again. There was something disheartening, almost Sisyphean, about that, and I could see that I might find it a difficult burden (at least for me) to carry for very long. Finally, when the new position on Chancery was created in 1989, it was “earmarked” (so to speak) for someone from Sussex County (since Kent and New Castle already had representatives on the Court of Chancery, and Sussex at the time—and indeed since 1973—had no one to represent it on Chancery). I was considered for the position, and found it very hard to say no to a Governor.
9) Of the many decisions you have written during your tenure on the Court of Chancery, which of them were in your view, the most memorable or those that you think are the most notable?
After more than two decades of judging, and hundreds of opinions, I find it increasingly difficult to differentiate cases based on their “notoriety” or their importance to the larger legal community. There are practitioners or academics that can probably make better judgments about that subject. I can only say that for me, personally, some of the human interest cases are the most memorable, or at least give me a deep sense of personal satisfaction that I have done something good to benefit real people—for example, there was a well-known case in Wilmington, shortly after I was appointed to Chancery, where I held a trial and concluded that a next door neighbor, a stock broker, had unfairly influenced and manipulated an elderly and frail woman, resulting in my order removing him as her attorney in fact and transferring back all of her property. There was a similar case where I found that a real estate broker had exploited his position and taken advantage of an elderly and vulnerable person and purchased her residence at an unfair price. There were also cases involving life support or blood transfusions that literally involve life or death decisions. These are the cases that have made the most lasting impression on me, despite all the hoopla that surrounds many of the large corporate and contractual disputes that make the headlines.
10) What changes have you observed over your tenure on the bench regarding: (1) the lawyers practicing before you; (2) the cases that are filed with the Court; (3) changes in the legal profession in general.
The increased numbers of lawyers has caused the legal profession to change in many ways, not all to the good. The competition for business and the billing pressures places a lot of stress on the profession, especially younger members of the bar. And, of course, the recent economic difficulty has magnified this phenomenon, and we’ve seen it in the Court with the elevated interest in clerkships and internships. Still, even with the growth in the bar, I remain impressed by the quality and caliber of the practitioners who appear in the Court of Chancery.
The biggest difference that I have noticed in the cases filed with the Court from 1989 until today is the relentless increase in the number and complexity of cases seeking expedited or summary proceedings. Indeed, just since 1997, the year I was appointed Chancellor, I’ve noticed what appears to be a steady increase, every year, in the number of cases that seek expedited treatment, and in comparison to when I first arrived on the Court it is a pretty remarkable increase, or at least it seems so to me (though I admit I have not conducted an empirical analysis to verify this judgment). I am not certain of all the reasons for it, but in part I think we may be a victim of our own success—that is, we are able to provide prompt hearings and trials and rulings, and that yields even higher expectations and demands from practitioners for even more of the same. It no doubt is also a function of the needs of businessmen and businesswomen, who operate with a “real time” mentality and understandably expect the Court of Chancery to do likewise regarding their disputes. The result, however, is an environment of intense pressure on members of my Court to handle a regular caseload, and simultaneously address on a daily basis emergency applications and motions for summary or expedited proceedings. That is the change or difference about this Court’s cases or work that stands out for me.
11) What advice or suggestions can you give to new lawyers who are appearing before the Court?
This is an open-ended question that deserves a more fulsome answer, but briefly I’d say invest the time to know your case from top to bottom, have a complete command of the facts (because the facts are usually the most critical drivers of a decision), know the legal rules or principles that apply and how a particular ruling or decision would affect, practically or doctrinally, other parts of Delaware law, and be prepared to get questions from the bench (which you should use to determine what is on the judge’s mind). Tell the story of your case honestly but try to structure it so as to interest the judge and convince the judge that your client deserves to win, and then give the judge the legal reasons to support that view. Be sure you appreciate and adhere to the customs and traditions of the Court, which you can learn by talking to those who have practiced here a long time, and from observing proceedings in the Court. I remember as a young associate with Morris Nichols that I would stop in to observe oral arguments, or trials, before Chancellor Brown and Vice Chancellor Walsh, in an effort to learn as much as I could about good practices in the courtroom, and the traditions of the Court.
12) Speaking of new lawyers, what traits or characteristics did you look for when you were hiring law clerks?
The hiring process for law clerks is a highly subjective one, and each judge undoubtedly goes about it in his or her own unique way. But personally, I am looking for qualities or characteristics that suggest the person would be easy to work with in chambers, and then I look for academic strength (good grades), writing ability, interest in the specialized jurisdiction of the Court of Chancery (corporate, securities, contract and commercial) and good references or recommendations from professors the applicant has studied under or from former employers. I rely on a personal interview, and often with my currently serving law clerks, to help assess whether the applicant would be comfortable working with me “elbow to elbow” and with other clerks in chambers. In the last few years, I have increasingly come to rely, quite heavily, upon a network of corporate law professors to steer potential applicants to me as well as to the Court of Chancery. When I speak to law students, therefore, I encourage them to seek out a mentor on the law faculty, if possible, who can give them advice and help in seeking a clerkship, especially if they are interested in the very specialized Chancery clerkship.
13) What are some of the things that you would encourage lawyers to avoid when they practice in the Court of Chancery?
Avoid coming to the Court of Chancery unprepared—you will end up feeling very foolish.
14) 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 the practice before the Court of Chancery?
My colleague, Vice Chancellor Laster, said it very well recently in an opinion, which I would commend to anyone serving as local counsel in Delaware. Local counsel has a duty to review all filings with the Court to make certain that the arguments and positions advanced therein are consistent with Delaware’s procedural rules and substantive laws. You also have an obligation to the Court to assure that out-of-state counsel know and conform to our customs and traditions (such as standing when addressing the Court—something that I often find local counsel has failed to explain or to warn the out-of-state lawyer about, resulting in an awkward and embarrassing moment for counsel when the Court must interrupt and “instruct” counsel about our tradition here). You have an obligation to be present at all hearings, arguments or any proceeding in Delaware, unless expressly excused from doing so by the Court. Out of state counsel should invite local counsel to review all filings (and hopefully afford them enough time to do so in a reasonable manner) and to offer changes whenever our local procedures or customs indicate. I think out of state counsel recognize this and almost universally follow the advice or suggestions of local counsel. Unfortunately, a few (to their ultimate regret) do not, and that leads to problems, such as reflected in Vice Chancellor Laster’s opinion. Fortunately, I think it is a very small minority.
15) 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?
I have written at length about the so-called indeterminacy issue, so my views are public and known to any who are interested. Rather than take up time here, I would refer your readers to Volume 2009 University of Illinois Law Review page 95 where my co-author and I respond to Professors Carney and Shepherd on their claim that Delaware law is so indeterminate as to make it inefficient and inferior to other legal systems. For now, I’ll simply assert that this problem is exaggerated out of all proportion, and I need only point to the countless instances where other jurisdictions (under those more “certain” legal regimes) rely on Delaware decisions for guidance. If our law is so indeterminate, it is a curious thing that so many other legal systems rely on it, cite to it, and seek to emulate it. Now, I will be the first to also admit, as I said in a recent speech, that some of our standards have become too complex, filled with subdoctrines, and deserve careful and thoughtful pruning or restoration to their original doctrinal clarity. I’m not the only member of this court who thinks this way, incidentally, and there are law review articles to prove it.
16) Given the nature of the business disputes that come before the Court of Chancery, what changes do you see occurring in the next five or ten years?
I expect even more instances of expedited and summary proceedings (including books and records demands, indemnification/advancement demands, election contests, voting agreement disputes, proxy disputes, and a host of alternative entity disputes as those “uncorporations” (to use Professor Ribstein’s term) are increasingly employed in transactions, and more emphasis on international and cross-border transactions. As the economy begins to slowly turn around, I believe all the sidelined liquidity will generate significant numbers of transactions, which will yield an increase in transactional litigation, either to prevent certain deals from closing or to force them to close. In a different vein, with the increasingly global nature of business, I also anticipate further requests or efforts to expand the jurisdiction of the Court of Chancery beyond traditional causes in equity in order to facilitate more purely legal disputes involving business entities to be adjudicated or arbitrated/mediated by the Court of Chancery.
17) Last question — what would you like people to know about you that you don’t think they already know?
Well, I’d tell you what my wife says–I enjoy cooking, and she enjoys my cooking, which works out perfectly. I have three beautiful granddaughters, and I obviously enjoy spending time with them. And, other than some of the company I keep when I go running, I have no real vices, so I’m pretty boring all in all. I like to read, to surf, fish, kayak, hike on mountain trails and (though less often of late) body board on nice 4 to 5 foot swells. In fact, I hope to be doing all of this a lot more in the weeks ahead.
Thank you Chancellor Chandler for taking the time to share your thoughts with us today and thank you for all that you have done as a judge for the citizens of Delaware and beyond. Best wishes in your new adventures and…surf’s up…it’s time to go !!!!