Outline Your Brief
Informed opinion is also divided about the desirability—with or without preliminary refutation—of following the basic order of argument used in the appellant’s brief rather than developing one’s own. There is something to be said for that approach. Most judges will have read the opening brief first, and the arguments will be better engaged, and easier to follow, if they both proceed in the same order. But generally speaking, we think that benefit is outweighed by (1) the prospect (often materialized) that the organization of the appellant’s brief will be a mess, and (2) the desirability of imposing your own perspective on things, placing your stronger points first and stamping your own order upon the case. Ignoring the appellant’s order of battle also enables you to prepare most of your outline and brief before the opening brief is filed. You don’t need to know what it contains, except for crafting responses to the few unanticipated points it raises. But again, don’t be rigid. Clarity is improved by having both briefs proceed in the same order, and if there’s not that much difference between your adversary’s arrangement and your own preference, use the same order.
Whatever approach you take, don’t allow the outline of your responsive brief to be put into final forum until you’ve seen the appellant’s brief. That is precisely why court rules give the appellee considerable time after the filing of the appellant’s brief (in the Supreme Court of the United States it is 30 days) instead of requiring simultaneous filing. That’s more than enough time to reorder the outline and (if you have already written your brief) to reorder sections and revise transitional passages.