Effective Brief-Writing: The Reply Brief

Your reply brief might turn out to be the most important vehicle for influencing an appellate court. You’ve just seen your opponent’s best shot at the arguments you made in your opening brief. Now you can give your best answers to those. Since no "sur-rebuttal" brief is allowed, he can't respond to your answers - except at oral argument, when it's probably too late to have much effect.

A few judges think the reply brief is so important that they read it first.

But many judges derisively call reply briefs "repeat briefs", because most do little more than repeat arguments made in appellant's opening brief. Put yourself in the shoes of The Decider. You’ve just read the opening brief and then the respondent's brief. Why would you then want to spend more of your valuable time reading a rehash of arguments you already read?

The reply brief should reply. It should contain your answers to the best arguments in respondent's brief. These answers might briefly interweave key points (especially facts) made in your opening brief, which could help hammer them home.

Here’s how I usually structure each section of my reply brief. First, “At AOB XX, we contended that . . . .” Here, insert a very short summary of that particular argument in your opening brief. Second, “At RB XX, respondent argues . . . .” Here, insert a brief summary of respondent’s counterarguments to that argument. Finally, “Respondent is mistaken, because. . . .” This structure makes it easy for the reader to locate all the pertinent arguments. It also allows you to repeat the essence (but no more) of your AOB argument.

Don't write another statement of facts for your reply brief. If respondent has misstated any facts or violated the standard of review or any presumptions, point this out in the Argument section of your reply brief.

Every statement of facts - for either party - must comply with the standard of review that applies to the legal issues raised in the opening brief. For example, if the appeal is from a summary judgment, the facts must come from the evidence favorable to the appellant, not from the evidence favorable to respondent. In my experience, respondents often ignore or try to slide around this rule, asserting certain "facts" and citing as supporting evidence declarations that were favorable to respondent but were contradicted by appellant's evidence. When this happens, I often begin my reply brief with something like: "Please ignore respondent's statement of 'facts', because it fails to comply with this Court's standard of review for summary judgments."

Reply to all of respondent's strong arguments and important cases. If you don't, they will impress the Court and might well cost you the appeal. Remember: you can try to respond to them at oral argument, but by then it will probably be too late to affect the outcome.

But don't bother trying to distinguish all of respondent's minor cases. It might be helpful to point out one or two of his more inexcusable mistakes, thereby calling into question his reliability on his better arguments.

A couple of times, I've picked up my opponent's respondent's brief, seen a rebuttal to one of the arguments I made in my opening brief - and could think of no good response! For my reply brief, I had three choices: (1) ignore his rebuttal, (2) include the best response I could come up with, even though I knew it was weak, or (3) concede the point. #1 is a very bad idea. Strong arguments against you won't go away. #2 isn't much better. Each time, I chose #3. The issue did not cost me the appeal, so I could afford to concede it. And the concession would enhance my credibility with the Court - which hardly ever sees lawyers concede anything. (Each time, I won the appeal.)

Your conclusion should restate - very, very briefly - your main arguments, so that will be the last thing the judge sees before she puts down the three briefs.

In a recent column on moot courts, I suggested holding a moot court before you file your reply brief. Bring in a panel of neutral, bright generalists. Have them read the appellant’s opening brief, the respondent’s brief, and your draft reply brief before the moot court. Their feedback will help you improve the reply brief.

The reply brief is your last real chance to persuade the court. Make it count.

by M.A.T. Legal Director Myron Moskovitz