Part XV: Rules Governing Actions Subject to Summary Proceedings for Commercial Disputes · Last amended April 1, 1994 · Last verified July 28, 2026
In one sentenceRule 129 lets parties in a Summary Proceeding forgo live witnesses and instead decide the case on a set of sequential briefs and a supporting record, provided they tell the Court within seven days after discovery closes that they've agreed to that approach.
(a)If the parties notify the court within seven days after the close of discovery that the parties have agreed to forego witnesses at the trial of the case, the parties may submit briefs and appendices in support of their cause as follows:
(1)Plaintiff’s Brief — thirty days following close of discovery;
(2)Defendant’s Answering Brief — within thirty days after service of plaintiff’s brief; and
(3)Plaintiff’s Reply Brief — within fifteen days of service after Defendant’s Answering Brief.
(b)The briefs must cite to the applicable portions of the record. Affidavits may be used but all affiants must be identified prior to the close of discovery and must, at the option of any other party, be produced for deposition within two weeks from the date discovery would otherwise close. The Court shall make factual findings based upon the record presented by the parties.
Amendment History
Added, effective Apr. 1, 1994.
Plain-English Summary
Rule 129 offers an alternative to a live trial. If both sides notify the Court within seven days after the close of discovery that they've agreed to skip witnesses at trial, they can instead submit the case through briefs: the plaintiff's brief is due thirty days after discovery closes, the defendant's answering brief is due thirty days after that, and the plaintiff's reply brief is due fifteen days after the answering brief.
Rule 129(b) sets the ground rules for what goes into those briefs. Every brief has to cite the applicable parts of the record, and affidavits are allowed — but only from affiants identified before discovery closes, and any other party can insist on deposing that affiant within two weeks of when discovery would otherwise have ended. From that record, the Court makes its factual findings; there's no live testimony for it to weigh instead.
This procedure connects directly to Rule 130(a): once the parties elect it, Rule 130 schedules oral argument, or a submission on the briefs alone if the parties waive argument with the Court's consent, within one week of the close of the Rule 129 briefing.
Frequently Asked Questions
How do we agree to use the optional briefing procedure instead of a trial?
Notify the Court within seven days after the close of discovery that both parties have agreed to forgo witnesses at trial.
What's the briefing schedule under Rule 129?
The plaintiff's brief is due thirty days after discovery closes, the defendant's answering brief thirty days after that, and the plaintiff's reply brief fifteen days after the answering brief.
Can I still use affidavits if we skip live witnesses?
Yes, but every affiant must be identified before discovery closes, and any other party can require that affiant to sit for a deposition within two weeks of when discovery would otherwise have ended.
What happens after the Rule 129 briefing finishes?
Rule 130(a) schedules oral argument, or submission on the briefs alone if the parties waive argument and the Court agrees, within one week of the close of briefing.
How does the Court decide the facts if there's no trial?
Rule 129(b) directs the Court to make factual findings based on the record the parties present in their briefs and appendices.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
Also known as:delaware summary proceedings briefing schedulewaive trial witnesses delaware commercial caserule 129 delaware optional briefingsubmit case on briefs delaware business court