Delaware briefs: 8,000 words, and consent will not buy you an extension
Delaware procedure · Last verified August 17, 2026
Two provisions of Delaware's briefing rule do most of the damage in practice, and neither is about the argument.
Rule 107(c) removes the ordinary courtesy extension:
Time of filing. Brief schedules shall be ordered by the Court, and extensions of time for filing briefs will not be authorized, whether or not consent of other parties is obtained, unless the Court enters an order upon a showing of good cause for such enlargement.
Whether or not consent of other parties is obtained. An agreement between counsel does not move a briefing deadline in Delaware. Only an order does, and only on good cause.
Rule 107(h) then caps what you can say.
The word limits
Rule 107(h)(1):
Type-volume limitation. Without leave of Court, an opening or answering brief shall not exceed 8,000 words and no reply brief shall exceed 5,500 words, exclusive of appendix. In the calculation of words, the material required by paragraphs (e)(1) and (2) of this rule is excluded and the material required by paragraphs (e)(3) through (5) of this rule is included.
| Words | |
|---|---|
| Opening brief | 8,000 |
| Answering brief | 8,000 |
| Reply brief | 5,500 |
| Excluded from the count | the table of contents and table of citations, and the appendix |
| Included in the count | the statement of the case, questions involved, and argument |
The counting rule is precise about what is in and what is out. Front matter under (e)(1) and (e)(2) is free; everything from the statement of the case onward counts.
Rule 107(h)(3) provides an alternative for parties without word processing: 40 pages for an opening or answering brief, 25 pages for a reply, with the same inclusions and exclusions.
Rule 107(h)(2) requires a certificate of compliance on any brief subject to the limit, by counsel or an unrepresented party, confirming compliance with both the typeface requirement in 107(b) and the word limit — and it "must state the number of words in the brief". You may rely on your word processor's count. Form 48 is a sufficient form of certificate.
So a brief that is under the limit but carries no certificate is still not compliant.
Typeface is prescribed
Rule 107(b):
Type of print for briefs, motions and other papers. All briefs must be double spaced and typeset in Times New Roman 14-point font with two spaces between sentences. Case names shall be italicized or underlined. Footnotes shall be single-spaced and typeset in Times New Roman 14-point font with two spaces between sentences.
| Font | Times New Roman 14-point |
| Body | double spaced |
| Footnotes | single-spaced, still 14-point |
| Sentences | two spaces between |
| Case names | italicized or underlined |
Footnotes staying at 14-point is the unusual one. There is no shrinking the footnotes to gain room, which is what makes the word limit hold.
What a brief must contain, in order
Rule 107(e) fixes the sequence:
| (1) | a table of contents or index |
| (2) | a table of citations, alphabetical, with the pages each authority appears on |
| (3) | in the first brief of each party, a statement of the case — the nature of the proceedings and a concise chronological narrative of relevant facts, with page references to the transcript, pleadings and exhibits |
| (4) | a statement of the questions involved |
| (5) | argument, in sections under headings, one section per question |
Two requirements are easy to under-deliver on. The statement of the case must carry page references to the record. And the argument must be divided "one section to be devoted to each of the questions involved" — the structure follows from (4), rather than being a matter of taste.
Citation form
Rule 107(d)(4) adopts THE BLUEBOOK for reported opinions and other authority, "with no reference to State Reporter Systems or other parallel citations".
For unreported opinions it offers three acceptable alternatives — a LEXIS citation, a WESTLAW citation, or the Delaware form giving the court, docket number, judge and date.
Rule 107(g) adds a practical duty:
If an unreported or memorandum opinion unavailable on either Westlaw or Lexis is cited, a copy thereof shall be attached to the brief, and the case number in which it was filed shall be stated. If the opinion does not contain a sufficient statement of the facts to demonstrate its pertinency to the pending argument, a statement of the facts shall also be attached to the brief.
And it protects the other side where the citation appears late: if it is first made in a reply brief, the opposing party may discuss the opinion at oral argument, or on application at argument may be allowed to do so in writing.
Filing and covers
Rule 107(a) requires the original and a copy filed with the Prothonotary of the county where the case is pending, with extra copies where more than one Judge will sit. It also catches a common informality: "A copy of every letter from counsel to the Court containing argument shall be sent to the Prothonotary for filing in the cause."
A letter making an argument is a filing, and belongs on the docket.
Rule 107(d)(1) requires covers to show the name of the Court, the title and number of the case, and the names of counsel — with office addresses for counsel resident outside the State. Typewritten briefs are on 8½ by 11 paper bound on the left margin.
Rule 107(j) allows an appendix of record documents or testimony, and asks that it "should not duplicate record materials already provided by an opposing party."
What happens if you do not file
Rule 107(f) is the enforcement provision, and its range is wide:
If any brief, memorandum, deposition, affidavit, or any other paper which is or should be a part of a case pending in this Court, is not served and filed within the time and in the manner required by these Rules or in accordance with any order of the Court or stipulation of counsel, the Court may, in its discretion, dismiss the proceeding if the plaintiff is in default, consider the motion as abandoned, or summarily deny or grant the motion, such as the situation may present itself, or take such other action as it deems necessary to expedite the disposition of the case.
| If you are | Possible consequence |
|---|---|
| A plaintiff in default | the proceeding dismissed |
| A movant | the motion considered abandoned or summarily denied |
| A respondent | the motion summarily granted |
Late filing is permitted only "Upon the showing of good cause in writing".
The subdivision closes with a fee-shifting provision aimed at compliance: where a motion to compel compliance with an existing order or stipulation is granted — or where the Case Scheduling Office applies and an order issues — the Court "shall require" the party, person or attorney whose conduct necessitated it to pay the other side's reasonable expenses including fees, "unless the Court finds the delay was justified or other circumstances make the award of expenses unjust."
When these rules apply to a dispositive motion
Rule 107(i) does not make full briefing automatic. Parties may use these guidelines on a dispositive motion where the Civil Case Management Plan for the county permits, where a Standing Order for the Complex Commercial Litigation Division requires it, or by leave of Court.
It also fixes the shape of the response: "Unless otherwise ordered, the responsive papers shall be in the form adopted by the moving party; i.e., if the moving party files a motion accompanied by a brief the responsive paper should be a brief."
Note the contrast with discovery motions, which are capped at 6 pages with a response 4 days before the hearing and no reply at all. See the Delaware motion to compel.
Where this connects
For the dispositive motions these briefs usually support, see Delaware summary judgment and the Delaware motion to dismiss.
Post-judgment motions have their own briefing structure inside Rule 59 — see Delaware reargument, where the answer and reply periods can be extended by written stipulation, unlike a Rule 107 brief schedule.
For counting the days, see Delaware discovery deadlines.
How Delaware compares
| Delaware | Federal | |
|---|---|---|
| Opening / answering brief | 8,000 words | by local rule |
| Reply | 5,500 words | by local rule |
| Page alternative | 40 / 25 | — |
| Certificate of compliance | required, with a word count | required on appeal |
| Footnote size | same 14-point | — |
| Extension by consent | not available | usually available |
| Argument sections | one per question presented | — |
| Letters containing argument | must be filed | — |
A short checklist
- Do not rely on consent to move a brief deadline. It takes a court order on good cause.
- Count words from the statement of the case onward. Tables and appendix are excluded.
- Attach the certificate of compliance with the actual word count — Form 48 is enough.
- Keep footnotes at 14-point. There is no gaining space there.
- Put page references to the record in the statement of the case.
- Give each question its own argument section.
- Attach any unreported opinion not on Westlaw or Lexis, with the case number.
- File a copy of any letter to the Court that contains argument.
- Check the county's Case Management Plan before assuming full briefing applies to a dispositive motion.
Where these rules live
- Del. Super. Ct. Civ. R. 107 — Briefs
- Del. Super. Ct. Civ. R. 56 — Summary judgment
- Del. Super. Ct. Civ. R. 59 — New trials and rearguments
- Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions
This page explains what the rules say. It isn't legal advice.