The Delaware Civil Court System

The Delaware Civil Court System is divided into three levels.  The most accessible court, and the least formal, is the Justice of  the Peace.  The second level has the Court of Chancery, the Court of Common Pleas, Superior Court and the Family Court.  At the top level, is the Supreme Court which takes appeals, at its discretion, from the four courts below it.  The Justice of the Peace Court appeals its cases directly to the Court of Common Pleas.

For many individuals with disputes less that $15,000.00, it makes sense to file in the Justice of the Peace Court.  The reason for this is chiefly that no attorney is required for an individual who wishes to prosecute their own action (a corporation or business entity may require an attorney to represent that entity unless a Form 50 is filed with the Supreme Court for the State designating an individual at the company as the representative for the purposes of those actions filed in the Justice of the Peace Court).  Because no attorney is required, it saves on legal fees.

Second, the Justice of the Peace Court has a relatively expedited Calendar.  This means that if you file a case with the Justice of the Peace Court, the likelihood is that you will have a hearing date within 60 days, depending on the service of the date of service of the complaint. Also, discovery is somewhat limited so the court is not likely to be bogged down by motions hearings regarding the inappropriate responses to interrogatories, the need to take depositions, or any other device that frequently delays trials or hearings at the secondary level.

Third, the forms are preprinted.  The Justice of the Peace Court, recognizing that it is "the place where justice starts," has preprinted forms that are used by the public and attorneys alike to initiate, respond, and continue actions in its courts.  In fact, the court has many of these forms online so that individuals can more easily determine what the court is looking for with its forms and procedures.

Finally, the Justice of the Peace Court has its own appeals process which for everything except landlord/tenant cases goes directly to the Court of Common Pleas.  This process is known as taking a trial de novo which is the legal equivalent of a "do over". This means that the Court of Common Pleas has no testimony or evidence upon which to base a decision from the case below, although it is aware of what the final ruling was.  It should be noted that in a landlord/tenant matter, the matter is appealed to a three justice panel of that court before any appeal to the Court of Common Pleas, if any.

Many people ask if a lawyer is necessary.  It is really up to the individual litigant.  If the litigant is an individual who has the time to put into the matter, who will not lose control when making an argument, and who is not afraid to address a group in a public setting, then a lawyer is not necessarily required.  In the alternative, if  the individual is somewhat nervous about their ability to speak in public, or is not comfortable with making legal arguments, or has little time to put into preparation, then an attorney may be the best solution.
Businesses should be aware that even though they filed a Form 50 the justice of the Peace Court, if the matter is appealed to the Court of Common Pleas, they will have to get an attorney.  There is no exception to this rule.

An individual can represent himself or herself in all of the four secondary courts, the Chancery Court, the Court of Common Pleas, the Superior Court and the Family Court.  There is a strong recommendation, however, that the individual be represented by an attorney.

The Court of Common Pleas and the Superior Court have concurrent jurisdiction over civil matters.  This means that a case may be brought in either court regardless of the amount in controversy.  However, civil jury trials are only available in the Superior Court.

The Chancery Court deals with specific types of litigation. Corporate matters, trusts, certain matters of contract law among others, are all reserved to the Chancery Court.

The Family Court for the state of Delaware covers all aspects of domestic relation law.  Divorce, property division, child custody, child support and child visitation are some examples of matters dealt with in the Family Court.  This court is adapted to working for those litigants who wish to represent themselves.  In fact, the Family Court in New Castle County has an entire area where litigants who wish to represent themselves can obtain forms and information (but not legal advice), known as the Self-Help Center.

Do you need an attorney to represent you in the Family Court?  Traditionally, the same analysis used with regard to whether or not an attorney should be used in the Justice of the Peace Court is useful to the Family Court litigant.  However, it should be added that one other criteria should be explored.  That is, the emotional factors involved.  Very few individuals can separate themselves from the emotional situation they find themselves facing when dealing with family court issues.

If the parties can truly have an amicable separation, then they may be able to resolve many outstanding issues without the need of counsel.  This is very rare, but not impossible.  If you feel you fall into this particular niche, you may not need an attorney.  However, the major part of those people facing these issues either do not have an amicable relationship or do not feel comfortable with the emotional baggage that is brought to a family court case.  In that case, it may be best to have a representative.

This general overview is for the purposes of those individuals who wish to become familiar with the court system in Delaware.  Mattleman, Weinroth and Miller is always happy to discuss your issues specifically. If we can be of assistance to you, please don’t hesitate to contact us.