A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Letter Briefs

"Did I forget to say why we should win the motion?" AI-Generated, displayed with permission

When you're drafting a brief, it can easy to get bogged down in all of the in-the-weeds counter-arguments and surrounding issues, and to kind of forget about the main point you need to make.

Years ago, in a patent case, I wound up needing to write three initial drafts of three summary judgment briefs in a week. Fun, right? The first two came together OK. The third one, not so much. It was a complicated motion involving many potential counter-arguments.

I remember thinking the initial draft was pretty good when I clicked send on the e-mail attaching it. How could it not be? In just …

Lying
Joshua Hoehne, Unsplash

As we mentioned recently, there was some discussion at the 2025 D. Del. Bench and Bar about the role of Delaware counsel. We may have a more detailed post about that at some point in the future. But today I wanted to offer some thoughts on one specific thing that good Delaware counsel does: avoiding allegations of dishonesty or bad faith.

Most Delaware counsel tend to be involved with filings of one type or another. Under the Local Rules, association with Delaware counsel is required, and Delaware counsel must be the registered users of CM/ECF.

In practice, that means we handle a ton of filings, typically drafted by out-of-state co-counsel. Delaware counsel's level of involvement …

"Guys, if we write our own opening brief on their issue, we'll get more than twice the page limit! The Court loves extra briefing, right?" ron dyar, Unsplash

I've had this come up a couple of times lately, and an opinion came out on Friday that addresses it.

Here is an example scenario: Each side has a discovery dispute. The Court sets a briefing schedule with opening, answering, and reply 3-page briefs. Can each side spend half of its opening brief pre-briefing the other side's issues? Should they?

Judge Fallon resolved this on Friday with a clear "No". You wait for the other side to file their brief, and then respond:

ORAL ORDER re 49 Joint Motion for Discovery …