The Pitfalls of Replies

Transcript

1 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS | Article 13 Volume 2 Issue 1 2000 The P itf al s of R eplies l son V ai l J a s and additional works at: http://l awreposit ory.ualr.edu/a ppellatepracticeprocess Follow thi Legal Writing and R esearch Common s , and the Litigation C ommon s Part of the Recomme nded Citation 213 (2000). rac . P pp , 2 J. A s ie . & P ep lls of R a f e Pit Th Jason Vail, rocess l ppellatepracticeprocess/vol2/iss1/13 ory.ualr.edu/a awreposit Available at: http://l rchives This doc ument is brought to you for f ree and ope en accepted for inclusion in The . It has be ory: Scholarship & A Bowen Law Reposit n access by strator of Bo ized admini ppellate Practice and Process by an author Journal of A mation, e infor rchives. For mor ory: Scholarship & A wen Law Reposit .edu please contact [email protected] .

2 REPLIES OF PITFALLS THE Vail* Jason argument. in any word last the having likes Everybody Consider disease." word "last from suffer particular in Lawyers a of the filing without litigated seen you've appeals many how none. almost brief: reply insisting for reasons good be to there seem surface, the On purported two it satisfies For instance, word. last the having on often more (the of Repetition Rule the persuasion: of elements and believed) be will it likely the more something, repeat you be to likely is more thing heard last (the Recency of the Rule remembered). syndrome, word the last dislike judges appellate most But part in springs This dislike briefs. of reply form the in especially their reading read-but to lots have judges that fact the from on the waste it to want they don't and rationed, is time of writer eager "The explained, judge one As unnecessary. in is competition he that mind keep in to well do would briefs of minutes precious each claiming so peers, or dozen two with larger or equal an and judges more or from three time reading law clerks."' of number replies most that fact the from springs also dislike The "Someone," place. first the in filed been have not should simply J. Aldisert Ruggero Judge Senior Appeals of Court States United a know didn't time, who at some "somewhere complained, once a preached had cases, decide judges appellate how about thing every in brief file a reply to lawyers appellants' to many gospel 2 judge the result, As a Always." kid. word, last the 'Have case: the by briefs reply reading have been 1968, I noted, "[S]ince 1999. © Office. Copyright General's Attorney Florida Attorney, Appellate * 109 (1994). JUDGING AND LAWYERING, COURTS, APPEAL: ON COFFIN, M. FRANK 1. ORAL AND BRIEFS BETTER APPEAL: ON WINNING ALDISERT, J. RUGGERO 2. ed. 1996). (NITA rev. 254 ARGUMENT 2000) 1 (Winter Vol. 2, No. PROCESS AND PRACTICE APPELLATE OF THE JOURNAL

3 THE APPELLATE AND PROCESS JOURNAL OF PRACTICE and maybe country, the all courts over in appellate thousands 3 reply briefs." as qualified genuinely hundred five to limited: and very simple brief is reply a of The function 4 brief. response appellee's the in made points the to only respond For do. to not things they ought do replies too But far often arguments is just to rehash of reply the a favored use instance, this, like don't judges appellate brief. But the in opening made terrain to traverse attempt does not brief that "a reply preferring it addresses when "is at its best brief A reply covered."' already an as such brief, appellant's opening in the raised not a point new decision brief, or a the appellee's in error or argument at is It its opening brief. of the the filing down since handed brief and the opening rewrites appellant simply when an worst 6 old to retrace reply a So using said before." was what restates Any unread. in the pile the reply tossed having risks ground panel's the may not reach raise you points significant additional, attention. in issues is raising appellate judges of major peeve Another not is This brief. the opening in not raised were that the reply on appeal issues raise the must The appellant allowed. 7 "specifically and distinctly" in the opening brief. If the ordinarily reply brief, issue into the a new appellant sneaks issue is it: The not consider will ordinarily courts appellate waived.' new in to bring using replies cannot resist Still, attorneys A arises from afterthought. impulse the Sometimes contentions. even assumes greater, upon reflection, minor, that point seemed briefly litigant the where the case in as such importance, pivotal then and opening brief in the footnote a in issue an mentioned 3. Id. 1385 1376, F.3d 151 Comm'n, Trade v. GmbH International e.g., See, Enercon 4. Cir. (Fed. 1563 1554, F.3d 81 v. Wawa, Inc., Ltd. Amhil Enters. (quoting 1998) Cir. (Fed. STATE FEDERAL AND APPELLATE PRACTICE: MODERN ROBERT MARTINEAU, J. 1996)); (1983). 199 CIVIL APPEALS 1, at 120. note supra COFFIN, 5. at 254-55. supra 2, note ALDISERT, 6. v. Miller (citing Fairchild 977 (9th Cir. 1994) 971, 28 FAA, v. F.3d 7. See Greenwood 199. supra note 4, at also see MARTINEAU, (9th Cir. 1986)); 738 797 F.2d 727, Indus., Inc., v. States United Cir. n.3 (3d 1998); 158 F.3d 729, 732 Halligan, Stem e.g., v. See, 8. Cir. (4th text) (full 543379 WL decision), table 1997 (unpublished 701 F.3d 121 Drennen, (1 1364 1354, 1th Co., 126 F.3d v. NationsBank Trust curiam); Herman (per 1997) 5, Sept. Cir. 1997).

4 REPLIES OF PITFALLS THE it at in the reply, to the appellate court's on expanded length 9 lawyer the when instances those are there Then displeasure. as such briefs, opening of limitations size on the wants to cheat to deliberately the reply for an issue hoarded who appellant the briefs.'° on limit opening former fifty-page the circumvent reserving or otherwise-for no points---credibility get You rule issues" new "no the reason for The reply. the issues until appellant allow an unfair to It is one by surprise. catch no should otherwise do to moreover, reply; in a an appellee ambush to fully be not that would issue because a risk decision bad would side." each briefed by in issues" rule only the "no new from departs court The court the instance, for case, In one limited circumstances. the matter because in a reply first raised issue an entertained contested the the appellant where oral argument, up at came the case, In another to its waiver. failed to object and point was it because late-raised issue a considered appeals of court "closely 3 tied" to the issues raised in the opening brief.' Don't such limited exceptions. falling within case on your count will generally appellate courts federal the Meanwhile, raised jurisdiction when subject matter to challenges consider 14 jurisdictional other major reply. However, in first a time for the brief. the opposing by raised not if be waived may challenges of Court Circuit First the opinion, a recent in example, For waived was defense Amendment an that Eleventh held Appeals ' brief. reply in the the issue raised only counsel because the attack to is with a reply do cannot you thing Another only the is A cross-appeal or judgment. opinion court's district court below. As one the result questioning for vehicle available the of core the challenge to wanting 'litigant "A explained, 1994). Cir. (8th n.7 367 362, Towing Co., 29 F.3d Tide Inc. Lime, Falco v. See 9. 1994). (5th Cir. 1285, 1299 18 F.3d v. Turner, Conkling 10. See 1999). 898, Cir. (D.C. 902 United States, 173 F.3d Order v. Police of 11. See Fraternal id. 12. See 1999). Cir. (4th 531 527, 173 F.3d v. Herman, Indus., Trinity Inc. 13. of City v. Prewitt 1998); Cir. (11th 1421, 1431 F.3d Biro, v. 143 States United See 14. WRIGHT ET ALAN 16A CHARLES Cir. 1998) (citing 298 n.4 (5th 296, F.3d Greenville, 161 probably court (the 1996) ed. [sic] (2d § 2974.3 AND PROCEDURE AL., FEDERAL PRACTICE to cite § 3974.3)). meant Texas but see 1, 4-5 (1st Cir. 1999); Co., 175 Tourism F.3d Puerto Rican v. Torres 15. 1998). 819 n.7 (5th Cir. Walker, 142 F.3d 813, v.

5 AND PROCESS OF PRACTICE APPELLATE JOURNAL THE brief and not so in its opening must do holding district court's 16 brief."" only its filed has appellee the after until fire its hold by the same a reply should governed be scope The of of witnesses: examination regulate redirect that considerations matters brought out in to new is limited "Redirect examination on brief the serves function same The reply cross-examination. limitation." " it should the same be subject to appeal, so before filing a reply. should think hard lawyers Appellate five only in to the impulse lawyers yield to Aldisert Judge urges situations: brief in covered the opening case not appellee a cites the If does or controlling not either it that show to able are is you and asserted. the proposition not stand for not covered an important argument appellee advances If the it. rebuttal to you have a convincing and your opening brief by not a question of jurisdiction the raised appellee has If brief. in your opening covered your filing have been handed down since cases If relevant brief. opening fact or an a of misstatement appellee has made If the 8 argument. irrelevant short. Briefs-especially reply Furthermore, keep your to shells: Size is not proportional like not artillery replies-are case a of knew pending I ago years a instance, For few impact. Appeals, the in which Circuit Court of Eleventh before the the in raised first to a reply point a appellants two-page filed appellees the argument, the panel grilled At brief. appellees' oral appellees' the dismissed and the cited cases the reply, in on the appellants' of out in the opinion-using hand position 19 cases. carry brief to require the opening rules sometimes These you if you anticipate an argument, For instance, extra freight. can be brief. This requirement raise in your initial it should as it gives troublesome for your case, if beneficial point is the to to the temptation wait helping you resist first you the word, 1996) Cir. (7th 1249-50 Union Ins. Co., 85 F.3d 1245, Commercial v. 16. Parrillo 1993)). Cir. (7th 1308 F.3d 7 Lines, 1305, Inc., v. (quoting Transcon Horn 254. at supra note 2, ALDISERT, 17. 18. Id. (per 1996) curiam). n.6 v. 85 Cir. 502, 507 Singletary, (11 th F.3d Lawson See 19.

6 217 THE PITFALLS OF REPLIES in of the point the treatment your later opponent's rebut to you expect opponent the if brief. reply Similarly, disfavored it cite case, you should a and distinguish particular rely on waiting. without the appellant the raised above caution Altogether, concerns Given file a reply brief. resist the automatically to impulse to briefs, too many of which instinctive aversion to reply courts' you need compelling reasons to of filing, are filed for the sake care and using strategic justify By taking greater their creation. you'll brief, initial contents of your the in planning planning attentiveness-of closer perhaps the respect-and the gain even it. you for those rare instances when Then, the judges who read will the sound basis for a the last word, court drafting do have audience you've shown you deserve. give you the

7

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