17 Tabor Reply Briefs 89C5E5924C1C1


1 Reply Briefs and Rebuttal Arguments: Getting the Most out of Having the Last Word I. Pros and Cons of Having the Last Word A. Cautionary Tale: Myth of Echo In Greek mythology, Echo was a mountain nymph who tempted Zeus away from his - winded conversations, always trying to wife Hera. Echo tried to engage Hera in long have the last word, so Zeus could slip away unnoticed. Hera caught onto the ploy and cursed Echo to repeat only the last word she heard. nymph’s Effects of Primac y and Recency B. Many studies on primacy and recency effects in persuasion have demonstrated that “ under specific conditions both the first or the last persuasive message may have a stronger effect Birte Englich, Thomas Mussweiler & Fritz Strack , The Last Word in .” urt — A Hidden Disadvantage for the Defense , 29 Law & Hum . Behav . , 705, 720 Co 2005) . ( C. Anchoring Bias “ esearch indicates the first standard or ‘ anchor ’ that is considered by decision [R] . . . . Although good makers exerts a powerful psychological effect on judgment arguments by the defense would obviously be helpful for the accused, recent anchoring research suggests that they would be insufficient to elimin ate the . . . [W] e would expect that counterarguments that are anchoring bias entirely. presented to judges would be less effective at decreasing the anchoring effect than would counterarguments self - generated by the judges. ” Id. (discussing sentencing decisions). B eware of using your reply/ rebuttal E.g., answer set of “questions” opportunity to posed by appellee. Those questions may be intended to “anchor” the discussion to the appellee’s theory of the case and divert the judges’ attention from the stronger arguments available to advance the appellant’s case. Cf. T homas A. Mauet, 332 (3 Fundamentals of Trial Technique , 273 – s r d ed. 1992) (“A clever defense lawyer during his argument will throw out a series of questions and challenge the Resist the temptation.”). other side to answer them during the rebuttal. 1

2 D. Built into Our Genes/Built into Our Rules 1. Psychological Phenomenon Whether it’s in an angry exchange of text messages, a face “ to - face argument, or a - shouting match on the phone, it’s natural to want to be the one to get in the last, However, during the heat of an argument, that definitive word. last word may be the worst and not the best — way to end a clash. . . . The ‘ — t word’ may qualify as a las successfully camouflaged attack: It doesn’t sound so bad to an outsider, but it cuts you to the core. ” Susan Krauss Whitbourne, PhD., Do You (or Your P ar t ne r ) Always Need to Have the Last Word , Pyschology Today (May 31, 2016) , ? - any https://www.psychologytoday.com/blog/fulfillment age/201605/do - you - or - - your - partner - always - need - have - the - last - word . 2. Legal P recept bears the R ules of legal procedure generally afford the last word to the party who burden of proof or, on appeal, the party with the of undoing the judgment from task Herbert J. Stern, Trying Cases to Win : Summation the trial court. See 285 (1995) , ("[Mlost ju risdictions award the party with the burden of proof two closings: an initial, main summation that is delivered first, and then a brief rebuttal following the closing of the defense.") ; see also John B. Mitchell, Why Should the Prosecutor Get the Last Wor , 27 Am. J. Crim. L. 139, 145 ( 2000) (“ the significan ce of having or d getting in the ‘last word’ is so deeply embedded in our culture that we all assume that some advant age goes to she who speaks last”). II. Reply Briefs A. Iowa Rules of Appellate Procedure Timing : “ If a cross - appeal has not been filed, the app ellant may file a proof copy of a reply brief within 21 days after service o f the appellee’ s proof brief . ” Iowa R. App. P. 6.901 . (1)(c) Length : “ If a required brief uses a proportionally spaced typeface it shall contain no more than 14,000 words. A reply brief shall contain no more than half of the type Iowa R. App. 6.903(g)(1). volume specified for a required brief .” 2

3 Reply to reply not allowed : “T here being no authority for such a pleading, s motion to strike appellee s reply brief and argument is sustained. ” In re appellant’ ’ ’ s Estate , 275 N.W. 485, 486 ( Iowa 1937) . Rinard B. The Usefulness of Replying “ s poor advo cacy to leave the opposing side’ s analysis of an argument as the last It’ word. Not replying implies that the lawyer’ s case is weak. ” Gerald Lebovits, Or Forever Hold Your Peace: Reply Briefs N.Y. St. B. A SS ’ N 82 J., 64 , 64 (2010). . , C. C an waiving reply brief be ineffective assistance of counsel? The purpose of a reply brief is to permit a response to contentions raised by an “ appellee for the first time in its brief in opposition. Consequently, in the absence of any new contentions, attorneys on appeal legitimately may forg o the filing of a reply brief without depriving their clients of the right to counsel . ” State v. Allgier , 353 P.3d 50, 54 . (Utah 2015) (emphasis added) D. Content: What to Say in Reply? Issues Allowed (with a limited exception) No New 1. “[W] e have long held that an issue cannot be asserted for the first time in a “ reply brief. , 480 N.W.2d 75, 78 (Iowa 1992) ; Mueller v. St. Ansgar Young v. Gregg State Bank 465 N.W.2d 659, 660 (Iowa 1991); State v. Willet , 305 N.W.2d 454, 458 , (Iowa 1981). “T his rule, however, like most other rules, is not without exceptions. ” State v. Lyle , 854 N.W.2d 378, 382 (Iowa 2014) . When appellee raises issue that the appellant was unable to address in opening brief, that issue may be countered for the first time in reply brief. State v. Carroll , 767 N.W.2d 638, 644 (Iowa 2009) See Although the State correctly notes Carroll did (“ not expressly assert in his initial brief that counsel's ineffectiveness vitiated the knowing and voluntary character of the guilty plea, we conclude the assertion was properly addressed in his reply brief under the circumstances presented here. Carroll w as not required to address the subject of waiver until the State raised it in its initial brief. ”) But Rehashing Discouraged 2. “ There are few things less palatable to appellate justices who are already overburdened with piles of briefs to review than havi ng to pore through organized presentation of arguments that is nothing more than a re - a reply brief 3

4 already given in the opening . Rather than emphasizing those arguments, brief impact brief will be to dilute their counsel will find that the effect of such a reply — and to irritate the members of the reviewing through repetition and overstatement ” Jonathan M. Purver and Lawrence E. Taylor, appellate bench in the process. , Part 3 Writing the Brief, Chapter 14, The Reply Brief Handling Criminal Appeals § . 103 (Purpose) Key Ingredients in Reply Briefs 3. a. Answer justiciability argument from appellee, e.g ., why party has standing to raise claims or why the issue is not moot or qualifies for exception to mootness doctrine . or Explanation how b. error was preserved/ raise exception to error preservation . c. Clarify debate over standard of review . Quote pa ssages from opposing d. brief that appear most susceptible to attack . e. . Address weaknesses in your own case, especially if downplayed in opening brief f. Make any concessions your case can afford or otherwise narrow the issues . (Helps judges who engage in “retroreading” — that is, starting with the reply brief to see if any claims fall out.) g. Bring to the court’s attention any intervening case law or legislative changes that may impact the issues in the appeal. h. Distinguish or explain the main authority relied upon in the opposing brief. i. Take a global approach. Don’t nitpick every slight disagreement with the opposing brief’s rendition of the facts. Refocus judges’ attention on appellant’s theory of the case. L eave the judges j. feeling that both the law and the equities are on your side . Do n’t 4. Sink to Petty and Unprofessional Attacks Reply briefs can bring out the worst in advocates. Somehow the knowledge the other mannered attorney into a sucker puncher. - side can’t strike back turns the most mild Resist the urge! Mudslinging is not becoming. Personal attacks on opposing 4

5 counsel, the litigants, or the trial judge are not persuasive and will sully your own tone or tactics have no place in written advocacy.” reputation. “Unprofessional , at 59 . Lebovits, supra We conceived reply brief. “ An appellate court from Indiana called out such an ill - would be remiss if we did not note the inap propriate tone permeating Reply Appellants . Counsel accuses employers of ‘ pilfering the earned wages of ’ Brief ’ ‘ contrived ignorance, ’ ‘ ’ and ‘ stealing Employees, trying to remain blissfully ignorant, ’ He also refers to Employer ’ s arguments as ‘ ridiculous, ’ ‘ blatantly illogical, ’ wages. indignation ‘ His brief reflects a lack of professionalism. Righteous ’ is no silly. and - reasoned argument.” Mitchell v. Universal Sols. of N. Carolina, substitute for a well . , 853 N.E.2d 953, 960 n.2 (Ind. Ct. App. 2006) . Inc 5. Reply briefs in trial practice No new evidence a. Although the Court granted leave to both parties to file , the reply briefs “ purpose of those briefs was not for the introduction of additional evidence, but to respond with additional argument to evidence already presented. The Court is not required to, nor an endless game of back and forth will it, permit with regard to evidence once ” , No. 1:04 - mmary judgment is appropriate. Petross v. United Supermarkets, Ltd. su 100 - C, CV 2004 WL 1836204, at *6 (N.D. Tex. Aug. 16, 2004) (emphasis added) . - b. Sur - reply briefs ? The purpose of a sur reply is to rebut argument party’ s “ s advanced in an opposing . The reply brief or explain a position that the opposing party has attempted to refute - reply brief may not be used to take another bite at answering an opposing party’ s sur motion for summary judgment — becoming nothing more than a 26 – page extension of the response brief — nor should it be employed as a tactical device to ensure that steals the final word ” Gibbons v. McBride , 124 F. Supp. 3d 1342, the plaintiff . (emphasis added) 1383 (S.D. Ga. 2015) . III. Rebuttal Arguments A. Oral arguments not guaranteed. allotted If oral argument “ granted, the court shall fix the time is for oral argument and notify the parties. ” Iowa R. App. P. 6.908 (3) . Don’t save your most persuasive points for an oral argument that may never take place. 5

6 No strict rule on content of rebuttal. B. In oral arguments, apparently by tradition, the appellant is given the last word. The time should be devoted to responding to the appellee’s key points. But this practice is observed in the breach. Often appellants are allowed, or even en couraged, by the time did not allow them to reach in the opening bench to discuss issues which Carolan v. Hill argument. Contra (describing , 553 N.W.2d 882, 889 (Iowa 1996) that which explains, repels, controverts, or disproves “rebuttal evidence” as “ evidence produced by the opposing party”). C. Giving a Rebuttal Argument is a Judgment Call “Have the maturity to know that sometimes silence is more powerful than having the last word.” ~~ Psychology Professor Thelma Davis 6




10 Reply Briefs — Really Necessary? The Recorder By Mike McKee July 30, 2008 California Supreme Court Justice Kathryn Mickle Werdegar finds them "very useful." Fourth District Court of Appeal Justice Barton Gaut thinks they're mostly a waste of paper. And several other appellate justices believe they'd be a lot better if lawyers put more effort into them. What's everyone talking about? Reply briefs. Those often innocuous documents — which give appellants their likely last chance of getting a lower court's jury verdict or judicial finding overturned — are actually rather controversial. (Who knew?) There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them. After all, the briefs are optional at the San Francisco-based Ninth Circuit U.S. Court of Appeals. So to get to the bottom of this divisive issue, The Recorder recently e-mailed all 103 justices e seven on the Supreme Court, asking for their on the California appellate bench, including th thoughts about reply briefs. Twenty-five justic es responded, including Werdegar and Chief Justice Ronald George from the Supreme Court. By and large, the responding justices felt that reply briefs — called ARBs in court lingo (for appellant's reply briefs) — are an integral and indispensable part of the courts' record. Werdegar said appellants often have to use the re ply brief to "confront the true strength" of an opponent's response brief. "Thus we sometimes see a petitioner in a reply brief abandoning weak arguments," she said, "or attempting to answer, for the first time, the most difficult arguments against her position."

11 But then there was Riverside's Gaut, who said attorneys "could save a lot of time and the cost to their clients by not preparing a reply brief. " He said a respondent's brief occasionally "requires some minor response, but even that is unusual." The most common annoyance cited by justices was that too many attorneys commit the sins of either simply regurgitating what they said in an opening brief or attempt to raise new issues for the first time. "A properly drafted reply brief can offer insight into the issues most in contention between the parties," said Justice James Lambden of San Francisco's First District. "Regrettably, replies are frequently ill-conceived and simply reargue the opening brief." Justice Arthur Gilbert, of the Second District's Ventura branch, made it clear that repetition isn't welcome. "Perhaps this is done in the hope that what is read last makes the lasting impression," he said. "These types of reply briefs do make an impression, but an unfavorable one." Ten other justices complained about getting fa r too many rehashed reply briefs. And Chief Justice George said he understands why that would be annoying. "If you just repeat the arguments," he said, "they are worthless." George, who was so keen on the subject that he called from out of state to talk, said his court often starts working on a case before the reply brief is filed. "Positions are staked out in the opening and response briefs," he said, "and one would start consideration of the legal issues and modify one's tentative conclusion [based on] the reply brief." In other words, the Supreme Court reads them. Reply briefs are limited to 4,200 words in the Supreme Court, but can run up to 14,000 in the lower appeal courts. Appellate specialist Paul Fogel, a partner in Reed Smith's San Francisco office, said the Judicial Counc il's Appellate Advisory Committee recently proposed that the number of words allowed in Supreme Court reply briefs be doubled.

12 Currently, if an attorney wants to exceed 4,200 words in the state's high court, he or she has to request the justices' approval. , very liberal at granting requests for more "My experience is that the Supreme Court is very words," Fogel said. "But one sentiment [among appellate lawyers] is, why should we invite all these requests? Just double the number of words." U.S. Supreme Court Justice Antonin Scalia heightened reply briefs' profile a couple of months s new book, "Making Your Case: The Art of ago when he said that while researching hi Persuading Judges," he discovered that "a lot of judges" start with the reply brief. They then read the respondent's brief and finally the appellant's opening brief in a practice called "retro- reading." One self-confessed reverse reader is Justice William Bedsworth of the Fourth District's Santa Ana branch. But he said he instead begins with the respondent's brief, followed by the reply brief and then goes back to the appellant's opening brief. "This helps narrow the issues for me before I re ad appellant's brief," he said in an e-mail. "[There's] nothing more frustrating than spending a lot of time struggling with something in appellant's brief, only to find respondent conced a completely different es it or attacks it on basis than the one anticipated by the appellant. "Same goes for reading [the] reply brief," Bedsworth added. "Appellant may abandon something he spent 20 pages on in opening brief after hearing respondent's reply, or may have a devastating comeback (or devastating lack of a comeback) to something respondent says." Fogel said that when he was a senior staff atto rney for former Chief Justice Rose Bird more than 20 years ago, he always started with the reply brief. "The reply brief to me was the most important document in the process," he said. "It's the appellant's last attempt to show why — notwithstanding what the respondent says — the appellant should win." To Daniel Kolkey, a partner in Gibson, Dunn & Crutcher's San Francisco office and a former

13 Third District justice, reply briefs are "the mother's milk of appellate advocacy." are not only your best opportunity to convince "If written with honest clarity," he said, "they y's arguments, they may also be your only the court of the bankruptcy of your adversar opportunity — given the limited time available for oral argument." First District Justice William Stein pointed out that in 10 to 20 percent of cases, appellants don't file a reply brief. That, he said, could mean the appellant realizes he is wrong or can't find a way to respond to a strong argument. "Either way," he said, "it gives you a clue it's not a strong case." Bedsworth, of the Fourth District, said that as a former appellate lawyer and a justice for more than a decade, he would definitely advi se appellants to file a reply brief. to give your opponent the last word before "Why in the world," he said, "would you ever want oral argument?" Reprinted with permission from the July 29, 2008 edition of The Recorder. © 2008 ALM Properties, In c. All rights reserved. Furt her duplication without permission is prohibited. For information, call 749.5410 or [email protected] a.com. ALM is now Incisive Media, www.incisivemedia.com



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