DIAMOND DUST
by K. Kay Shearin
(c) K. Kay Shearin 1992
Contact: ks24@georgetown.edu
FOREWORD
0: Paragraph 1 I didn't do very much research for this book --
mostly I looked up spellings or dates in a dictionary or my 1972 'Funk &
Wagnall's New Encyclopedia', but I also reviewed documents I wrote or
received that described events at the time -- because it's an account of
what I've seen and experienced myself. Where I've repeated something
someone else told me, I've tried to identify that source and the
circumstantial evidence that makes me believe it, and I haven't included
anything that I don't affirmatively think is true.
0: Paragraph 2 Many of the things I've said here are unflattering to
someone, but nothing here is actionable defamation, partly because what
I've said is true and partly because it's already been published in
transcripts of in-court testimony that are public records. Nobody put
me up to writing this, and I can't imagine very many people could be
happy that I have, but I wanted the catharsis of packaging these
memories into a bundle so I can walk away from it and get on with my
life.
0: Paragraph 3 Nearly thirty years ago a mentor said to me, "There
are two kinds of people in the world: those who get ulcers and those who
give them to others., Which do you want to be?" It took me some years
to master the technique, but now I usually manage to get aggravations
out of my system instead of brooding on them. Oysters can turn their
irritants into pearls, and I'd like to salvage some pearls of wisdom
from mine.
0: Paragraph 4 Many of my attitudes were shaped by my mother's
sister. My mother's abuse made any healthy relationship between us
impossible, so for about ten years from my parents' divorce when I was
thirteen, Aunt Ruth was in many ways my real parent. She was amoral and
apolitical and a lot like "Auntie Mame," and she taught me to evaluate
things for myself and to measure them against my own standards and
experience. If she were still alive, she'd be proud of me for writing a
book, but she wouldn't understand that it's payment of a moral debt.
0: Paragraph 5 My late Aunt Frances would, though. My father's
mother died when I was an infant, so her youngest sister filled the
place of a grandmother for me. She was famous within the family for
putting the words on people, and her words were often unsuitable for
polite society. From her I learned to call a spade a blankety blankety
spade and to stand up to anyone who had done me or mine wrong. One of
my warmest memories is of the time I blessed Aunt Frances out for an
insensitive remark she had made about my father in front of him, and she
admitted she had been out of line. That was the rite of passage that
marked my arrival into adulthood.
0: Paragraph 6 I believe most problems between people result from a
failure to communicate. On the theory that "If you're not part of the
solution, you're part of the problem," this book is my effort to
communicate.
K. Kay Shearin
Elsmere, Delaware
June 1992
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CHAPTER I. The lay of the land
1: Paragraph 1 Delaware is the opposite of the old cliche: not much
to visit, but a great place to live. To Amtrak passengers in the
northeast corridor, it's a station between Baltimore and Philadelphia;
to drivers on Interstate 95, it's not even a wide place in the road
between Washington and New York; to its residents, it's one of the
best-kept secrets around -- a pearl not to be cast before swinish
outsiders.
1: Paragraph 2 As nearly as anyone knows, the state's population is
somewhere around 700,000. Although it's the second smallest state in
area and has only three counties, there is a marked polarity between the
relatively urbanized northern tip of the state, where most of the
population is concentrated in Wilmington, and what they often call
"slower Delaware," usually defined as "below the [Chesapeake & Delaware]
canal."
1: Paragraph 3 Someone seeking a symbol of Wilmington to put on
souvenirs -- in case anyone would ever want a souvenir of Wilmington --
would probably pick the equestrian statue of Declaration of Independence
signer Caesar Rodney that usually stands in Rodney Square, a grassy
one-block plaza in the middle of town. He was the hero who had gone
home to die but returned to Independence Hall to cast the tie-breaking
vote in the Delaware delegation in favor of the Declaration; we're still
arguing about whether he died of cancer or syphilis.
1: Paragraph 4 They took his statue down a year or so ago to fix it,
and its massive plinth looks like a ruin standing across the street from
the Hotel du Pont that takes up most of the block on the west of the
Square. The block east of the Square is occupied by the Public Building
housing the state trial courts for the county. Facing the Square on its
south is the public library, and on its north is the headquarters of
Wilmington Trust Company, the favorite bank of the duPont family and E.
I. du Pont de Nemours & Company, Inc. Standing in Rodney Square, you're
physically less than five miles from New Jersey, ten from Pennsylvania,
and fifteen from Maryland, but in most ways you're in a different world.
1: Paragraph 5 Until about two decades ago the duPonts ran Delaware
as a company town, and they ran a tight ship. For example, once upon a
time du Pont wanted to hire a high-level executive; a candidate and his
family passed muster, and he was offered the position. He said the only
problem with moving to Delaware was that his daughter was taking ice
skating lessons and hoped someday to qualify for the Olympics, and there
was no teacher of that caliber in Delaware. Today there are, at the two
Olympic-sized rinks down the road from Wilmington in Newark; one is
where Calla Urbanski and Rocky Marvel trained for the 1992 Winter
Olympics.
1: Paragraph 6 I heard that story in 1974 from the people who
interviewed me for a job on the professional staff of the University of
Delaware, whose main campus is in Newark. Their theme was that Delaware
was, and would remain, the kind of place where I would want to be,
because du Pont would always exert its influence to insure that Delaware
was the kind of place the kind of people it wanted to attract would want
to live.
1: Paragraph 7 They also explained to me that U. of D. was a
private, not a public, school because if it were public it would be
subject to the federal anti-segregation laws, and nobody wanted that.
So in an arrangement that may be unique, and which is often called
"semi-private," instead of making the school the state university and
having the legislature appropriate money from the general treasury for
it, each year the General Assembly votes for a voluntary donation to the
private school, on behalf of the taxpayers of Delaware, out of the
treasury.
1: Paragraph 8 Partly because of its small size, and partly because
of du Pont's historic paternalism, Delaware in general, and Wilmington
in particular, don't suffer today from the problems that plague so many
parts of our country, especially the major cities. And the problems
Delaware does have are largely the result of du Pont's abdication of
that r le, leaving the kind of power vacuum that inevitably attracts
scoundrels to public office.
1: Paragraph 9 Delaware's economy is, of course, the product of that
political situation. Du Pont is by far the greatest economic power in
the state, but Hercules Incorporated and ICI Americas Inc. are players,
too, especially in Wilmington. Downstate is agricultural, except for
the summer shore resorts, just north of the border with Maryland, at the
other end of the ferry from Cape May, New Jersey. Peaches and other
fruit were a big cash crop early in this century, but a blight killed
most of the orchards, some of which are still standing, eerily
beautiful, like rows of surreal black skeletons. Today much of the
country's scrapple is made in Delaware, but the main agribusiness is the
"chicken factories" where poultry is processed and packaged for
supermarkets -- some people will tell you lower Delaware is God's
country, but many will tell you it's Frank Purdue's.
1: Paragraph 10 Although there is a big Air Force base in Dover, the
federal government is a relatively minor economic force, so federal pork
barrels don't influence Delaware politics much. State and local
governments don't employ a lot of people, and many government employees,
even some of the highest elected officials, are allowed to have private
employment at the same time, so political pigs have access to slop from
other sources, not just the public trough. The office of Attorney
General, for example, is established in the state constitution; the AG
heads the Department of Justice, is elected in a statewide election
every four years, and stands third in line to become governor if
something happens to the governor, the lieutenant governor, and the
secretary of state. The AG can invalidate state statutes simply by
issuing a written opinion, and no criminal complaint can even be filed,
much less prosecuted, without the AG's approval; in short, as Delaware's
lawyer, the AG has complete control over all legal processes that
involve the state government.
1: Paragraph 11 Incumbent AG Charles M. Oberly III, first elected in
1982, shortly started publishing a newsletter as a private business.
Questions were raised as to whether that was ethical or even lawful, but
Oberly exercised his power to rule it was okay. That's what they mean
by, "There's no excuse for losing if you're keeping score." Today that
newsletter, which reports the rulings in some cases in Delaware courts,
is written by Deputy AGs and typed by secretaries in the Dept. of
Justice, both in the course of their public employment. But the
subscription money goes to Oberly personally, and although the quality
of the newsletter is poor, compared to competing publications, the
subscription price is lower, too, because Oberly doesn't have the same
production costs as his competitors, and some of his subscribers have
told me they see it as legal insurance -- they've noticed the Dept. of
Justice is more attentive to the needs of subscribers, and they more
often enjoy favorable results in legal proceedings, than nonsubscribers.
1: Paragraph 12 Oberly has rejected offers to purchase his
newsletter business for more than it's worth, because he wants to keep
that ostensibly legitimate mechanism for collecting money from the
citizens he's pledged to serve. You get what you pay for. That story
was told to me by several persons, including some of the competing
publishers, who had offered to buy Oberly out, while I was working for
them, but many other elected officers have lucrative private sidelines.
The county Recorder of Deeds and Register of Wills, for example, both
have private law practices besides those elective, salaried positions
that provide them offices and staffs in the public buildings in
Wilmington.
1: Paragraph 13 So does the Public Defender, who is appointed, not
elected. Lawrence M. Sullivan has been Delaware's PD for more than
twenty years, and most indigent criminal defendants in state court are
represented by one of his deputy PDs, who also have private law
practices on the side. The poor quality of these representations have
been an open scandal for years: In 1981, in an opinion in 'Waters v.
State', published at 440 'Atlantic Reporter' 2d 321, the Delaware
Supreme Court took Sullivan to task for trying to shirk responsibility
for the inadequacy of the legal services he provided. It has been
traditional for the PDs to divert defendants who can come up with any
money, usually from their families, to their private practices; a very
few indigent defendants, usually repeat offenders who learned the first
time around how much help the PD is, demand and get independent lawyers
appointed and paid by the court.
1: Paragraph 14 The defendants stuck with the PD are often worse off
than if they had no lawyer at all, because they rely on the bum advice
they get from a lawyer who gets paid the same salary no matter how much
or little time he spends on their case and resents taking the time away
from his private practice, where he can bill by the hour. Take the case
of Susan J. Scott, for example: On 20 September 1986 she fatally shot
her live-in boyfriend who had been violently assaulting her for the five
years they had been together. She was arrested, charged in Delaware
Superior Court with first-degree murder and possession of a deadly
weapon during the commission of a felony.
1: Paragraph 15 She was represented by one PD for about a year, and
then he left the PD's office, so her case was assigned to another deputy
PD named Duane D. Werb. Although he knew there was evidence supporting
Scott's self-defense claim, Werb advised her that the "battered woman
defense" wouldn't fly in Delaware, that there wasn't enough evidence to
prove self defense at trial, that proving self defense couldn't clear
her of the lesser included offense of manslaughter, and that if she pled
guilty to manslaughter she would receive a sentence of three and a half
to seven years in prison. So on 26 May 1988, a week before her trial
was supposed to start, Scott took Werb's advice and pled guilty to
manslaughter; she was sentenced to twenty-five years in prison.
1: Paragraph 16 Then Scott's family managed to scrape up the money
to hire New Orleans lawyer Richard Ducote, with a national reputation
for representing battered women, to try to get her sentence reduced. On
19 July 1989 Judge John E. Babiarz Jr., who had accepted Scott's guilty
plea and sentenced her, reversed her conviction in a written opinion
ruling that Werb had committed legal malpractice by giving her advice
that was blatantly wrong on three separate points of law. The two
charges against her were reinstated, and Scott's trial was scheduled for
16 October. That morning the deputy AG offered another plea agreement:
If she would plead guilty to manslaughter, she would be sentenced to
three years, which was how long she'd been in maximum security by then.
So she pled guilty and was immediately released from prison.
1: Paragraph 17 Scott wanted to sue the PD for legal malpractice,
and Ducote was willing to represent her in that suit, but he had trouble
finding a member of the Delaware bar willing to go up against the PD,
and he had to have a Delaware lawyer to act as local counsel because he
wasn't licensed to practice law here. He finally asked the Delaware
ACLU for help, but all they did was give him my name; I agreed to be
local counsel in the case, and that's why I came to know about it.
1: Paragraph 18 On 15 August 1991 we filed Scott's civil complaint
in Superior Court, against Sullivan and Werb. Remember that the
prosecutor in the criminal case had been the AG and that a Superior
Court judge had already ruled the PD committed legal malpractice. Now
the AG appeared on behalf of the PD, because the AG is the lawyer who
represents all state employees, and Superior Court Judge Vincent J.
Poppiti summarily dismissed the complaint: He ruled that because Scott
had pled guilty to manslaughter, the same as she did on Werb's advice,
she could not have been harmed by any wrong advice he gave her! That
dismissal was recently affirmed by the Delaware Supreme Court.
1: Paragraph 19 That story illustrates not only the incestuous (if
not downright masturbatory) nature of Delaware's criminal justice system
but also the distinctive feature of Delaware civil litigation: Most
participants in civil litigation are from out of state, and they have to
pay featherbedding Delaware lawyers to hold the courthouse doors open
for them.
1: Paragraph 20 A couple of years ago the American Bar Association
rated Delaware as fourth in the country in the number of lawyers per
capita, and that's true as far as the numbers go, but it gives a false
impression: Many of the lawyers in Delaware are employed in companies
other than law firms, so they're not available for hire by other
clients; many of the lawyers working in banks or other companies are not
admitted to the Delaware bar, so they couldn't go into private practice
anyhow. Unlike many states, Delaware no longer cuts lawyers from other
states any slack in getting into the Delaware bar, and every candidate
for admission has to take the same bar exam and perform the same
clerkship, no matter how long the person may have been a lawyer (or even
a judge) elsewhere. This anti-carpetbagger rule was made by the
all-lawyer state Supreme Court, not the nearly lawyer-free legislature
(now 1 of 21 senators; 1 of 41 representatives), and ensures that there
won't be too many lawyers (about 1900 now) compared to the amount of
business, but it has the effect of decreasing competition, and I firmly
believe that free-market competition is always good and is what made
this country great.
1: Paragraph 21 In many places, the lawyers who make the most money
are the ones who do personal injury litigation -- that's why you see so
many commercials for that kind of business wherever lawyers are allowed
to advertise on television. PI lawyers usually work for a contingency
fee (often a third of the amount recovered), meaning they get paid only
if they win, and the plaintiff doesn't pay any up-front legal fees.
That's why there's too much litigation in this country: No matter how
bogus the suits are, a lawyer who files enough of them will sometimes
hit the jackpot; defendants often settle for nuisance value to avoid the
humongous legal expenses they will incur even if they end up winning,
and it doesn't cost plaintiffs anything to sue, so if they lose they're
not out anything, and if they win they come out ahead.
1: Paragraph 22 In Delaware it's not like that. The big-ticket
legal cases here are not over personal injuries but over corporation
law, and we have a special court for litigating corporation cases, the
Chancery Court. Chancery or equity court started in England in the late
1300s and over the centuries developed a separate structure similar to
that of the so-called law courts, and certain types of cases became
associated with one or the other. By the time America was settled, it
was established that criminal prosecutions and civil suits for money
damages were legal cases, while probate, adoptions, and civil suits for
injunctions were equity cases. One of the main distinctions between
them was that there were no juries in chancery.
1: Paragraph 23 A trustee is a person who has agreed to hold or
manage property for someone else's benefit, and anything to do with
trusts is within the equity court's jurisdiction. The idea of a
corporation is that its directors are trustees for its stockholders,
managing the money they paid for their shares for their benefit, so any
litigation over corporate affairs is a chancery case.
1: Paragraph 24 The federal District Courts have both legal and
equitable jurisdiction, but only in cases where there is federal
jurisdiction over the subject matter, of course, and most states have
similarly combined the two courts into one, although some states
maintain a distinction between the law division and equity division of
the court. In Delaware the Superior Court has jurisdiction over cases
that are legal only and the Chancery Court has jurisdiction over every
case where either the subject matter or the relief sought includes any
equitable component.
1: Paragraph 25 So in Delaware if you want to sue your neighbor for
the cost of fixing your garage when he overshot his driveway and smashed
into it, you do that in Superior Court; if you want to enjoin him from
driving across your property in the future, you do that in Chancery; and
if you want to do both in one suit, you have to do that in Chancery,
too, because the Chancery Court has jurisdiction over legal claims
related to equitable claims, but the Superior Court doesn't have
jurisdiction over equitable claims related to legal ones.
1: Paragraph 26 The Chancery Court now has five judges: Chancellor
William T. Allen, who is rated one of the best chancellors in living
memory, and four vice chancellors of varying lesser ability. Most of
the cases that come to them involve either trusts or corporations, and
there are no juries, so they make all the decisions in every case, and
that gives them an awful lot of experience. Unfortunately it's like
what John F. Kennedy said about the difference between ten years of
experience and one year of experience ten times: They keep getting
cases that are exactly the same except for the name of the corporation.
I often wonder why they're still writing opinions from scratch when they
come to the same result and take so long; they have word processors, so
they should load standard paragraphs and then do their opinions by
selecting from a menu.
1: Paragraph 27 There are, after all, only two possible rulings on a
motion for anything -- it's either granted, or it's denied -- and the
recurring issues have well established standards the court is required
to consider. Probably the most frequent issue they decide is the motion
for preliminary injunction: Every time the Wall Street Journal says
there's going to be a tender offer for a company, at least one of its
stockholders files a class action to enjoin the deal. There are three
points a party has to prove to get a preliminary injunction, so the
Chancery Court should have a one-page preliminary injunction opinion
form that has, for each of those three questions, a "no" box and a "yes"
box with a blank next to it for the judge to fill in the fact that
proved that point. Then the word processor could spit out the
standardized preliminary injunction opinion with those customizations --
"You may have already won a preliminary injunction, Plaintiff Insert
Name Here" -- and citations to the latest precedents on each point.
1: Paragraph 28 So why don't they do that, if it would be easier and
faster? Because the big legal business in Delaware is corporation
litigation, and nobody here wants to streamline the process and so cut
down on the profits from it. Most lawyers in Wilmington (which is the
bulk of the lawyers in Delaware, using that word in several different
senses) are or want to be local counsel for out-of-state lawyers in
corporation cases; the ethics rules governing lawyers say they can't
split fees except in the same proportions they split the work, and the
only work local counsel can usually claim to do is supply the expertise
on local practice and precedents. Because the procedural rules in
Superior Court are very similar to those of the federal courts, and the
Chancery Court rules are virtually identical to the federal rules,
lawyers from anywhere in the country already know as much as they need
to about local practice here, so all that's left for local counsel to do
is provide gossip about the judge or other lawyers in the case and
citations to prior opinions that have not been published in the national
reporters. So Chancery Court issues tons of opinions that aren't
published, say the same thing over and over again, and give local
counsel the right to claim a large percentage of the fee for reviewing
pertinent opinions.
1: Paragraph 29 Delaware is the corporation capital, and some
writers have said corporation whore, of the country: More corporations
are chartered here than in all the other states put together, and
Delaware actively encourages that with its laws governing corporate
affairs and taxes. When you're going to sue a corporation, you have a
choice about where to do it, and one of the choices is always a court in
the state where the corporation is chartered, whether it does any
business there or not. So most corporations can be sued in Delaware
because they're incorporated here.
1: Paragraph 30 Until November 1991 everybody knew a corporation
could always sue somebody else in the state where the corporation
plaintiff was chartered, but then the Superior Court handed down a
decision throwing out a case filed by a Delaware corporation against a
whole slew of insurance companies for not covering claims against the
plaintiff for hazardous waste dumps. The Chancery Court would never
have made a ruling like that, and the lawyers here are hopping and
howling at the prospect of losing the chance to be local counsel in some
of those cases -- they're trying to get the legislature to pass a law
guaranteeing the "right" of a Delaware corporation to drag defendants
into Delaware courts whenever they want to.
1: Paragraph 31 Remember that most Delaware lawyers want to be local
counsel in corporate cases, and a lawyer who goes up against
corporations will be blacklisted and never be hired to represent
corporations. A plaintiff in a personal injury suit sues whoever did
the injury, but in effect the suit is usually against an insurance
company -- in a car accident case, it's the auto insurance; in a medical
malpractice case, its the doctor's professional insurance; in a product
liability or slip-and-fall case, it's the casualty insurance; and in
tender-offer cases, it's the directors' E&O insurance -- so insurance
companies pay the lawyers in many cases. The bottom line is that a
person in Delaware who wants to file a personal injury suit can't
usually find a good lawyer here to do it, because the lawyers don't want
to go up against the insurance companies and run the risk of never being
hired by those companies in the future.
1: Paragraph 32 The United States was founded on the idea of
individuals' rights, but in Delaware corporations count for more than
people do now. Take the top state officials: The governor and
lieutenant governor are elected separately, so we can, and recently did,
have a governor who was a Republican and a lieutenant who was a
Democrat. The governor appoints the Secretary of State, who regulates
corporations -- entities that contribute lots of money to campaigns but
can't vote and usually aren't in Delaware anyhow. If something happens
to incapacitate the governor and lieutenant governor, the Secretary of
State becomes governor; if something happens to him, the AG elected by
the people becomes governor. That shows that Delaware puts the
interests of corporations ahead of the interests of voting individuals.
Thomas Jefferson and Abraham Lincoln must be spinning in their graves.
1: Paragraph 33 My civil procedure professor used to joke about the
"lawyers' full-employment act," and nowhere does that concept command
more respect than in Delaware. Non-Delaware lawyers working inside
companies here usually don't bother to apply for admission to the
Delaware bar, and swell its ranks, because the Bar Association and every
other privilege extended to lawyers is equally open to lawyers working,
but not admitted to practice, here. One reason there are never very
many lawyers in the General Assembly is that there are not enough lawyer
to spare -- you can make a lot more money double-billing clients in
Wilmington than driving down to Dover to sit in the legislature.
1: Paragraph 34 Ever since 'Marbury v. Madison' it's been accepted
that the judiciary can overrule the executive, but in the federal system
Congress can usually overrule the Supreme Court legislatively. But in
Delaware if the legislature passes a law that disfavors lawyers or that
lawyers disfavor, the AG invalidates it; so, contrary to the theory of
tripartite government with checks and balances, we have a member of the
executive exercising ultimate control over the legislature. Spin, Tom.
Spin, Abe. Spin, spin, spin.
1: Paragraph 35 One novel aspect to the old-boy network in Delaware
is that it's easier here for a woman to become a judge than a senior
partner in a big law firm. Although there has not yet been a female
justice on the Supreme Court, there are women on the benches of the
other courts. With two notable exceptions, they are mostly women who
had been with largish local firms long enough that the firms faced the
prospect of making them senior partners, and that wouldn't do; so the
senior partners used their influence to have the women appointed judges,
because Delaware is a state where judges are appointed, not elected.
The two exceptions are Vice Chancellor Carolyn Berger, whose husband
Fred S. Silverman is AG Oberly's right-hand-man and actually runs the
Dept. of Justice, and Judge Jane R. Roth, who is now on the bench of the
Third Circuit federal appellate court but was until recently one of the
federal District Court judges here and whose husband is Delaware's
Republican in the U. S. Senate, William V. Roth Jr.
1: Paragraph 36 So the legal system in Delaware is like a medieval
fiefdom. He who pays the piper calls the tune, and here that's the
out-of-state corporations and their lawyers. The citizens are in the
same predicament as the serfs when itinerant knights employed by
absentee overlords rampaged across the land, destroying crops, herds,
and sometimes the villeins themselves while fighting each other over
esoteric points of honor nobody ever explained to the peasants because
it had nothing to do with them anyhow.
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