February 05, 2019

Reply Briefs: Making the Last Word Count

By Devin Dolive

As part of the 2018 AJEI Summit, three sitting appellate judges shared thoughts and personal observations regarding reply briefs.  Attorney Roger Townsend of Houston, Texas moderated a panel presentation entitled “Effective Reply Brief Strategies:  Making the Last Word Count.”  Panelists were Judges Jill Pryor and Elizabeth Branch of the United States Court of Appeals for the Eleventh Circuit and Chief Judge James Lockemy of the South Carolina Court of Appeals.  Remarkably, the three-judge panel was evenly divided between state and federal perspectives:  Judge Branch covered both, based on her years of experience serving on the Georgia Court of Appeals before her March 2018 appointment to the Eleventh Circuit.

Mr. Townsend kicked off the discussion by pinpointing the problem practitioners face with reply briefs.  Appellate lawyers have reason to worry over their reply briefs.  Lawyers may find oral argument stressful, but most of what makes an oral argument stressful is outside the lawyer’s control.  Not so with the reply brief.  With the reply brief, the appellant’s lawyer gets to preview her oral argument.  This is a good thing, because, unlike the oral argument itself, the lawyer can control the content.  Yet court rules do not give the appellant the right of reply merely to preview the oral argument.  Instead, the reply brief must also respond to the appellee’s misstatements of the law, new issues, new case authorities, and more.  The reply brief has plenty of work to do, without many words (or, in some state courts, pages) in which to do it. 

All panelists agreed that reply briefs are extraordinarily important.  Judge Branch warned against squandering the opportunity for the last word, and the panelists gave examples of how they have seen reply briefs misused.  Judge Lockemy (echoing Mr. Townsend’s introduction) emphasized that, at least in jurisdictions where oral argument is not the norm, judges will often rely on the reply brief in deciding whether or not to grant oral argument.  Mr. Townsend’s written materials for AJEI attendees highlighted a related point:  the reply brief itself can serve as a substitute for oral argument in cases likely to be decided on the briefs.   

The panel had three suggestions on what not to do in a reply brief:

  • Do not repeat; instead, refute and reply.  When the reply brief restates arguments from the opening briefs, the appellant is effectively asking the court to re-read what it has already read.  However, Mr. Townsend noted that a reply brief can, when appropriate, cross-reference sections and page numbers from the opening briefs; this avoids unnecessary repetition and allows the reply brief to reply. 
  • Avoid emotion.  Judge Lockemy pointed out that the reply brief should not serve as a “last desperate attempt” to make the appellant’s case.  Judge Branch explained that the reply brief provides the appellant with the opportunity to take a step back and remind the court of what the appellant is trying to accomplish.  The appellant squanders that opportunity if all the reply brief shows is that the other side’s arguments have hurt the appellant’s feelings.  Liberal use of underlining, bolding, and exclamation marks will not persuade the court. 
  • Do not waste time (or space) on nitpicky things.  Judge Branch explained that the truly nitpicky points can go in footnotes.  The following sentence provides an example of a legitimate use of footnotes on reply:  “Here are 15 cases that the appellee cites that are not relevant ….”  Of course, nitpicky points may still require explanation.  If the appellee’s case authorities are irrelevant “red herrings,” the reply brief should concisely explain, for the court’s benefit, why those authorities are “red herrings.”

While the panel had plenty of examples of what not to do in a reply brief, pinpointing what makes for an effective brief proved somewhat trickier.  This is not to say the panel was without suggestions.           

For instance, a good opening brief can set the stage for a good reply brief.  Judge Pryor observed that the opening brief can help to inoculate the appellant’s presentation against the less favorable aspects of the case by bringing up and putting in context “bad” law or facts before the appellee does.  When the appellant submits a good opening brief, the appellee’s brief will have less sting, and the appellant will not have to waste space in her reply brief refuting those arguments that the appellant expected the appellee to raise.  Judge Branch explained that the reply brief allows the appellant the chance to survey the damage that the appellee’s brief has done to the appellant’s case and to fix that damage.  That, of course, is easier to do if the appellant has already structured her opening brief so as to anticipate the damage from the appellee’s arguments.  The appellant’s opening brief should address obvious issues head-on, rather than saving them for reply.  This will allow the reply brief to focus on the appellee’s concessions and weak points, rather than having to play “whack-a-mole” attempting to refute every point made in the appellee’s myriad of arguments.

Interestingly, contrary to what practitioners may think about how appellate judges consider the cases before them, none of the panelists typically reads reply briefs first.  Instead, lawyers should assume that judges will read briefs in the order in which the parties submit them.   Judge Pryor noted one possible exception, but this exception will not provide much solace to brief-writers.  Judges may find it easier to read the reply brief first in those instances where the appellant’s opening brief raises too many issues and/or is simply too confusing.  In those cases, judges may put down the appellant’s opening brief and turn to the reply brief in an attempt to understand the real issues.  The appellant, of course, should strive to avoid this scenario.  A well-structured opening brief should pretermit the need for the court to refer to the reply brief for sake of clarity.

In terms of what makes for an effective reply brief, the panelists agreed that reply briefs should always respond to new matters raised in the appellee’s brief.  The question is how to do so, and there was debate amongst the panel about the best organizational structure to use on reply.  One school of thought says that the reply brief should always follow the structure of the appellee’s brief.  Judge Lockemy noted that this has the advantage of ensuring that the court will see that the appellant has addressed every issue raised by the appellee.  Still, Judge Pryor cautioned that counsel should think carefully about whether or not it makes sense to adopt the other side’s framework.  As an example, in a case where the appellee’s brief begins by arguing that the appellant failed to preserve issues and has thus waived those issues for appeal, the appellant may want to dispose of that notion by addressing it front and center in the reply brief.  But, as Judge Lockemy pointed out, if the appellant begins her reply brief by responding to a waiver argument, that might risk giving the appellee’s argument undue attention.  In such instances, if the appellant disputes the waiver, it may be more effective to address the waiver arguments towards the end of the reply brief, rather than risk giving a weak argument more attention than it deserves.              

The panel also addressed a question that appellate lawyers who bill by the hour might see as verging on heresy:  is a reply brief always necessary?  Answering this question, Judge Pryor noted that a reply brief can potentially do more harm than good in instances where the appellee’s brief is truly incomprehensible.  The last thing the appellant would want to do is clarify the appellee’s arguments for the court.  Likewise, Judge Lockemy pointed out that a reply brief may not be necessary in instances where the appellee’s brief merely responds to appellant’s arguments in a manner already anticipated (and addressed) in the appellant’s opening brief.  Filing a reply brief in such a case would risk violating the maxim of “reply, do not repeat.”  Judge Branch pointed out that appellants face an uphill battle, which is why the appellate rules give the appellant the last word.  In those instances where the appellant does not need the last word, the appellant should think twice before filing a brief that simply rehashes what has already been said. 

The three-judge panel recognized that the practitioner’s job when fashioning a reply brief can be difficult.  Brevity is always best, and especially on reply.  At the same time, a reply brief needs to address new matters raised in the appellee’s brief, distinguish the appellee’s case authorities, and highlight the appellee’s concessions on critical points.  The practitioner must strive to do all of this without letting emotion cloud the presentation.  This can be especially difficult when the client provides feedback on drafts of the briefs.  The client may appreciate “wild” (or at least strong) language, but the real audience is the court, not the client.  Judge Pryor explained that a good reply brief will show, rather than tell.  Also, Judge Branch gave a parting, practical tip to attorneys who wish to ensure that they are not letting their emotions cause them to squander the last word:  have someone not connected with the case read your reply brief before you file it.   

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Devin Dolive

Devin Dolive is a partner in the commercial litigation and labor & employment practice groups at Burr & Forman LLP's Birmingham, Alabama office. He is admitted to practice in Alabama and Ohio and received his B.A., summa cum laude, from Amherst College and his J.D. from the University of Virginia School of Law.