August 01, 2018 Top Story

Failure to File Surreply Leads to Waiver on Appeal

Appellate court cites trial court’s local rules in decision

By Matthew S. Mulqueen

A party may waive arguments on appeal by failing to file a surreply allowed by right.

In Ennin v. CNH Indus. Am., LLC, an appellate court ruled in favor of a defendant where the plaintiff did not counter the defendant’s evidentiary objections with a surreply during motion practice before the trial court. The decision is a reminder to pursue arguments in a timely and zealous manner, say ABA Section of Litigation leaders.

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