The Delaware Supreme Court on October 22 decided when and how Delaware lawyers may be sanctioned for the way they conduct litigation. For the first time, that court firmly held that the so-called "objective test" applies in Delaware to determine if a lawyer’s conduct is sanctionable under Rule 11. Second, the court held that an attorney is entitled to a hearing where he is able to defend himself before a sanction is imposed. Because the lawyer conduct involved did not violate the objective test, the trial court’s sanction was vacated. The decision inCrumplar v. Delaware Superior Court has important implications for the practice of law in Delaware’s courts.

The Delaware Superior Court had levied a $25,000 sanction for two reasons. First, the attorney cited an unreported decision to support part of his argument in his brief opposing a motion for summary judgment. The case he cited had actually been settled and not decided as he claimed. Second, in another case, that attorney failed to distinguish opposing authority cited by his opponent’s brief. The Superior Court, without a hearing, imposed a $25,000 sanction. The Superior Court judge was concerned that the attorney’s conduct caused the court trouble in dealing with the heavy workload of the asbestos case docket. Hence, the court meant to send a signal on how attorneys should conduct themselves.

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