Potpourri

You Made Your Case – The Art of Persuading Judges – REPLY BRIEF

Reply Brief

The reply brief is a different animal from the appellee’s brief. It is not a principal brief, which is expected to make the initial presentation of important points. It is designed, as its name indicates, to reply to—to answer-points already made in an earlier brief. Some think this means that it must be devoted exclusively to (1) treating any new issues raised by the appellee’s brief, and (2) answering the appellee’s attacks on the appellant’s principal brief. In this view, the reply brief should not reiterate or reinforce the arguments made in your principal brief, except by way of responding to the appellee’s attacks. We think otherwise, for two reasons.
First, it is always desirable to place your arguments—even responsive arguments—in your own setting of the case. A mere response to the appellee’s argument without any description of your own case fails to do this.

Second, and more importantly, the reply is ideally a wholly self-contained document, comprehensible without any reference to earlier writings. Why? Because many judges and law clerks have developed the habit of reading briefs in reverse order: reply first, then the responding brief, then the appellant’s initial brief. That doesn’t square with the expectations of counsel, who write their briefs to be read forward rather than backward. But you have to deal with the real world, which includes many retro-readers. Assume that the judge has only your reply brief in hand. Don’t send the judge to your adversary’s brief to understand what the case is about.

The advantage of placing your reply in the settings of your own case presentation, plus the necessity of making your reply brief comprehensible to the retro-reader, suggests that you must encapsulate your case in the reply. Since there are probably more forward-readers than retro-readers, we adhere to Aristotle’s view that if your adversary has made any really telling points, you should refute them at the outset. Otherwise, begin with a quick summary of your own case, and then demonstrate the inadequacy of your opponent’s response.

One thing, however, the reply brief must not contain: brand-new arguments that you didn’t think of or didn’t have space for in your principal brief. Raising new material that cannot be responded to is an unfair tactic that may (and should) alienate the court. When you have recapped your case, and replied to new issues and attacks contained in the appellee’s brief, come to a close. Oh, and one last thing: If the appellee has raised no new issues and made no attacks that you haven’t foreseen and answered in your principal brief, forgo the reply. The court doesn’t want to hear you repeat yourself.

Inputs Antonin Scalia and Bryan A Garner

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