Effective opposition and reply briefs can make all the difference. Here’s how to make the most of your unique opportunity to rebut opposing counsel’s contentions.
Review the brief you are opposing for any exaggerations, misstatements of fact, analytical flaws, and anything of significance that is omitted. Then deconstruct it. Read all documents opposing counsel relies on in the fact section, and all cases and other authorities opposing counsel relies on to support the argument. Case cite each case referenced, and determine if you can distinguish as a group several cases on which opposing counsel relies. Focus on facts and supporting authorities opposing counsel relies on that make a difference; don’t waste your limited pages on inconsequential points.
Respond to each argument in the sequence that is most effective, not necessarily in the order of the brief you are opposing. Be sure to cite to the pages in opposing counsel’s brief. Make your most powerful argument first. Don’t just regurgitate what is in your initial brief, but do make references to it, by page number, as appropriate. End strong. Give the judge a good reason to rule in your favor.
If the applicable rules allow you to file a reply brief, decide if you need to file one. In drafting, limit yourself to what is in opposing counsel’s memo, analogous to redirect being limited to re-cross in examining a witness at trial. Take advantage of what opposing counsel failed to address as well as what is in it. Make it punchy and memorable. The shorter the better. If the judge allows a sur-reply brief, make it even shorter. Do not repeat arguments you already made.
In drafting briefs, comply with all applicable rules, including those imposed by the judge in your case. Strictly observe page limits and margin requirements. Keep in mind deadlines imposed by court rules and the applicable scheduling order. You don’t want to miss this golden opportunity to convince the judge.
Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed as a Trial Lawyer, 2d ed. (ABA 2017).