381 Crafting an Influential and Effective Reply Brief

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1 Appellate Issues UMMER DITION E 2012 | S UGUST | A / ORG . AMBAR . WWW AJCCAL CRAFTING AN INFLUENTIAL AND EFFECTIVE REPLY BRIEF (1) By Richard C. Kraus fines, an appellant must respond to the appel- lee's arguments, refresh the arguments from the Even though reply briefs offer the opportunity opening brief, and make a final push to per- for the last written word on appeal, many read suade the court to reverse. Reply briefs test ap- like an appellant’s afterthought. Anecdotal re- pellate counsel’s ability to concisely and effec- ports indicate that some judges and clerks read tively distill winning arguments on appeal. reply briefs first, assuming that appellants will have distilled the most critical and compelling Deciding whether to file a reply brief arguments by then. Yet, too many reply briefs In almost all courts, reply briefs are optional. are focused entirely on rebutting the appellee’s Yet, there are very few – if any – circumstances arguments and fail to effectively present the ap- that justify the decision to forgo the chance to pellant’s position. Whether read first or last, an lighten the reading bur- file a reply. Trying to effective reply brief must leave the judges with den for busy appellate judges is not a good rea- a coherent understanding of the reasons why son for waiving a reply. Although judges can the appellant should prevail on appeal. be irritated by a reply that just repeats the same A reply brief should serve as a reprise – a return arguments in the opening brief, courts appreci- to the original theme. In musical theater, a re- ate a succinct and well-written reply brief that prise repeats an earlier song or theme, usually demonstrates the merit of the appellant’s posi- tion despite the appellee’s response arguments. with changed lyrics to reflect the story’s devel- loped in the opening opment. The theme deve t. A good reply brief Judges want to get it righ can help. brief needs to be brought back to the forefront, refashioned or refocused as needed to respond A reply should be filed even when counsel ts. The opening and to the appellee's argumen hopes to send a message that an appellee’s brief reply brief must share the persuasive theme. is so lacking that no response is needed. An ef- Crafting an influential reply brief is difficult. fective approach is to highlight the arguments that the appellee did not contest or discuss. Most jurisdictions have short page or word lim- (2) . Courts rarely grant motions to file reply its This provides an opportunity to briefly restate the appellant's arguments and add that the ap- its. Within these con- briefs exceeding page lim (1) Richard Kraus is a shareholder with Fost g, Michigan. His practice over the past 30 years has involved numerous er, Swift, Collins & Smith, P.C., in Lansin appeals in state and federal courts. He was named as 2006 Lawyer of the Year by Michigan Lawyer’s Weekly and received the Distinguished Brief Award for Exceptional Appellate Advocacy before the Michigan Supreme Court. He is an active member of the Council of Appellate Lawyers a nd the State Bar of Michigan Appellate Practice Section. (2) The limits in state appellate courts range from 10 to 30 page s. F.R.App.P. Rule 32(a)(7)(B)(ii) allows a fairly expansive limit of 7,000 words.

2 PPELLATE A I SSUES AGE P 2 pellee “does not challenge" or "does not dis- der the arguments rather than accept the appel- pute" those points. lant’s organization. Faced with this approach, an appellant’s counsel must decide whether to Selecting the arguments to address retain the organization from the opening brief or reply to the appellee’s arguments as pre- Many lawyers, including experienced appellate sented in the response. In almost all cases, ac- practitioners, suffer from the advocate’s com- ceding to an appellee’s reorganization is a mis- pulsion to respond to every argument in appel- take and forfeits the appellant’s advantage of lee's brief. However, the appellant’s job never framing the arguments. The reply to appellee’s changes. The reply brief, just like the opening arguments should be woven into the appellant’s brief, must explain why the appellate court reprised themes. Following the opening brief’s should correct the trial court’s errors. Before organization and structure helps to refocus the drafting a reply brief, try to identify which re- court on the issues presented by the appellant. sponse arguments will interest the judges and what questions the panel might ask at oral argu- Avoid the defensive trap ment. If an appellee’s argument does not deal with these critical and dispositive issues, an ap- Many lawyers fall into the defensive trap and pellant should not waste valuable space by re- make the mistake of repeating the opponent's a brief footnote explain- plying. In some cases, argument before rebutting it. A typical para- ing why the argument can be ignored may be graph begins with the appellee's argument as appropriate. the topic sentence. The remainder of the para- graph is the appellant's response. This ap- Use an introduction proach combines two errors – the opposing ar- gument is repeated for the court and given the A brief introduction allows the appellant to con- by the topic sentence. prime real estate occupied centrate on the key legal issues and develop a A better approach is to begin the paragraph statement of the critical arguments that counters with a sentence stating the appellant's argument the appellee’s response. The urge to jump di- and the error in the appellee's argument: "The rectly to a rebuttal of the appellee’s arguments plain language in the contract supporting appel- should not obscure the benefit of a succinct re- lant’s interpretation cannot be overcome by the prise of the reasons why the trial court reversi- extrinsic evidence asserted by appellee." bly erred. Counsel should also be c areful when replying to Point out concessions and omissions an appellee’s argument requires explaining it. A very effective approach is to identify and Restating a confusing response carries a risk of highlight the arguments that the appellee con- clarifying it. Although the approach will vary, cedes, or more commonly, the arguments that it is often effective to state the appellee’s argu- the appellee does not address. An introduction ment in general terms without any of the sup- with a bulleted list allows the appellant to re- porting details that are or should have been pre- state the arguments that are conceded or uncon- sented. tested. Responding to the counterstatement of facts Structuring the reply brief Because the statement of facts in the opening When representing an appellee, a skillful appel- brief should cover the relevant facts in a non- late advocate will commonly restate and reor- argumentative but persuasive manner with sup-

3 A PPELLATE I SSUES AGE P 3 there should not be any ts that were successful rely on the same argumen porting record citations, need to engage in an exhaustive point-by-point in persuading the trial court. While a good ap- pellant’s brief will anticipate and address those rebuttal of the appellee's factual statement. It arguments, there are times when an appellee may be enough to simply state that the appel- offers new twists, , when an appellee retains e.g. lee's counterstatement fails to comply with the new counsel on appeal, especially an appellate requirements for an accurate, unbiased and sup- specialist, who realizes that the trial court’s rea- ported recitation. The reply should avoid a lit- soning is weak and relies on the “erroneous rul- any of "she said, he said" statements. A few key ing but right result” principle. examples of the appellee's misstatements of fact will demonstrate that the court should rely on an issue that does When an appellee presents the appellant’s opening the statement of facts in require a new argument in reply, the appellant brief. should acknowledge it and explain why the is- sue was not discussed in the opening brief. In At times, the appellee’s response will point out some cases, the best explanation is the appel- facts that undermine or weaken the appellant’s lee’s failure to raise the issue in the trial court. position. A reply is necessary in those cases, With reply space at a premium, appellants can especially when the facts should have been ac- characterize the appellee’s approach as conced- knowledged and dealt with in opening brief. ing that the trial court e rred in its rulings. The The reply should demonstrate why the facts are reply can point out that experienced trial coun- immaterial or the appellee’s statement is wrong. sel did not feel the arguments had sufficient If the appellee has fairly identified factual errors merit to raise them in the trial court. Treating in the opening brief, the reply should acknowl- the appellee’s arguments as “fall backs” or “last edge the mistake. A forthright admission is less resorts” that can be easily discarded can be ef- painful than being skewered at oral argument fective. or in the court’s opinion. Respecting the rule against new arguments An appellant’s counsel should be very reluctant to move for permission to file a reply brief ex- The rule against raising new arguments in a re- ceeding the page limits. Explaining the need for ply brief is easy to state. Judges do not appreci- additional space gives the clear message that ate sandbagging and understandably take a the appellee’s argument may have sufficient jaundiced view of any new arguments pre- merit to warrant affirmance. sented in a reply brief and of the appellant’s Replying to the attack brief counsel who raises them. When an appeal is handled by experienced ap- The line between a new argument and a re- pellate counsel, the “attack brief” is blessedly stated argument is not always well-defined. If infrequent. At times however, the response at- the response to an appellee's argument requires tacks the appellant and appellant’s counsel. In an extensive revision to the original argument, almost every case, the reply should ignore the it is important to explain why the reply argu- attacks. At most, a brief footnote indicating ment is still a restatement. The link between the counsel’s unwillingness to take the bait may be original and reply arguments should be evident. all cases, the appellee must refrain justified. In Courts understand the difference between rais- from adopting the tone of the response. Appel- ing a new argument and dealing with an unan- late judges are not impressed, and in most ticipated one. Most appellees understandably

4 PPELLATE I SSUES A 4 AGE P is a publication of the Appellate Issues The cases, turned off by incivility. Courts welcome American Bar Association (ABA) Judicial Divi- a reply brief that maintains the same profes- Appellate Is- sion. The views expressed in the sional tone as the opening brief. sues are those of the author only and not neces- Footnotes sarily those of the ABA, the Judicial Division, or the government agencies, courts, universi- Due to page limits, there is a natural inclination ties or law firms with whom the members are to use footnotes for replying to important but affiliated. non-essential responsive arguments. Although the approach does not work when a court has Editor Appellate Issues word limits, the space saved by single-spaced David J. Perlman footnotes in page-limit courts is tempting. Gen- E: [email protected] erally, counsel should resist the temptation. Judges know why counsel use footnotes. The P: 484-270-8946 risk that some judges will not read footnotes is unacceptable, especially in courts where briefs are read on tablets and footnotes are not easily viewed. The space used for footnotes is better devoted to cogent arguments in the text. In some cases, however, it may be worthwhile to employ a sparing number of footnotes to signal that an appellee’s argument is immaterial and can be summarily dismissed. Copyright 2012 American Bar Association Conclusion and relief requested All Rights Reserved As a way to save space, appellants sometimes choose to omit a statement of the relief re- quested. Unless there is no alternative, a reply brief should close by telling the court what the appellant wants. After all, that is the most im- portant question in any appeal. Contact the ABA Judicial Division 321 N. Clark St. 19th floor Final thoughts Chicago, IL 60654 An appellant’s opening brief should provide the Appellate Judges Conference court with all of the legal and factual grounds Council of Appellate Lawyers for reversing the trial court. The reply brief Christie Breitner should emphasize why those reasons are still [email protected] compelling after a fair consideration of the ap- pellee’s response. The reply should confidently Publications and Membership and credibly refocus the court’s attention on the Jo Ann Saringer appellant’s arguments. [email protected]

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