Last week, Leslie posted about the Delaware Supreme Court's Amendment to its Internal Operating Procedures (a link to the post can be found here).  As a follow up to the post, I want to highlight a change concerning pre-submission communication within the Court regarding the resolution of cases.  The previous procedure followed by the Court was as follows:

No discussion prior to scheduled sitting. Each Justice independently reviews briefs and appendices prior to an oral argument day or decisional conference unless specifically agreed otherwise in a given case. Neither the Justices nor their law clerks discuss the merits of a matter between chambers prior to oral argument or the decisional conference for cases  submitted on briefs.

In the Amended Procedures, the Court opens up the possibility for pre-submission communications:

Typical pre-submission communications . Before scheduled sittings, each Justice independently reviews the briefs and appendices unless specifically agreed otherwise in a given case. Neither the Justices nor their law clerks discuss the merits of a matter between chambers before oral argument or the date of submission for cases submitted on briefs.

In particular situations, however, the Justices assigned to decide a case may determine it would be useful to confer in advance of oral argument or the date of submission of a case to be decided without argument on the briefs. For example, in an expedited case where a decision is required at or shortly after oral argument, the Justices may determine that it is advisable to circulate preliminary thoughts and key questions based on their reading of the briefs and record on appeal, so that the Justices can best prepare for oral argument, oral argument can be the most helpful to reaching a sound decision, and the Justices can issue their decision with the requisite speed. In these circumstances, all of the Justices assigned to decide a case should discuss the approach to communication and endeavor to reach consensus.

Time will tell whether this change impacts arguments before the Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.