To Reply Or Not To Reply: Considerations On Appeal
Appellate procedural rules give the appealing party the option to submit an additional brief after receiving the answering brief of the opposing party. This is a huge opportunity that should not be squandered. The function of the reply brief is simple and very limited: to respond only to the points made in the respondent’s brief. But the rhetorical purpose is much more important: to get the last word! Unfortunately, instead of using the opportunity to make a strong impact on the court by submitting a concise presentation that systematically dismantles the opponent’s arguments, many practitioners submit a reply brief that does nothing more than rehash arguments set forth in the original brief, or worse, tries to introduce new points that should have been introduced initially. Neither will be well-received by the court.
There are many good reasons to submit a reply brief. After all, who doesn’t want to have the last word in an argument? Moreover, the “recency effect,” in which more recent information is often better remembered and given greater weight, is a valid psychological principle. As long as certain do’s and dont’s are kept in mind while preparing a reply, the valuable opportunity to have the last word should not be wasted.
THE DO’S OF REPLY BRIEFS
Washington Rules of Appellate Procedure state that a reply brief must be “limited to a response to the issues” in the respondent’s brief. Be sure to heed this basic requirement. That said, there is so much that a carefully prepared, well-written reply can accomplish. In some cases, the judges and law clerks who read the briefs will start with the reply. With this in mind, the reply should read like a stand-alone document. It should include the critical facts and the most persuasive legal arguments. It should also tell a story, presenting an overarching theme and tying all the narrative elements (setting, character, plot) together to reach a compelling conclusion: you win.
Be as concise as possible. Get to the heart of the matter on the first page of your brief, and only include what is necessary to make your point. A short reply tells the court that you are confident about your position.
As soon as the opposing brief is received, you should update your research to see if any new cases have come out since the original filing. If so, the reply is the perfect opportunity to bring new information to the court’s attention. The case must actually be new, in that it came out during the intervening period of time between the filing of appellant’s brief and the filing of the reply. It cannot be “new” in that it was missed during your research the first time. Don’t forget to shepardize the cases you cited in your initial brief to be sure they are still good law.
If the respondent either failed to address any arguments in your opening brief, or even conceded any significant issues, be sure to highlight this in your reply and argue waiver, if applicable. In addition, if respondent cites a case not discussed in the opening brief, and you can argue that it is either not controlling or distinguishable, or respondent makes a misstatement of fact or an irrelevant argument, your reply should highlight these points as well.
Finally, a word about credibility. While the basic purpose of a reply is to address arguments raised in respondent’s brief, keep in mind that a good opening brief anticipates the opponent’s position, addresses them head on, and doesn’t avoid bad facts or law. While this is always a delicate balance for a brief writer (you don’t want to bring up arguments that your opponent might miss), your candor will likely give you credibility with the court.
THE DON’TS OF REPLY BRIEFS
First and foremost, do not treat the reply brief as an afterthought. Put as much thought and effort into it as you did with the initial brief. In some ways, the reply is more important than the original filing. It is where your arguments and those of your opponent are viewed side by side, and - if the reply does what it is designed to do - clearly and unequivocally resolves the issues in your favor.
Don’t just give the court a condensed version or executive summary of your opening brief. This just wastes your time, your client’s money, and, most importantly, risks losing the court’s attention and interest in your argument. If your reply is nothing more than a rehash of the arguments set forth in your initial brief, the judges may remember it - but not in a good way. Credibility is extremely important when arguing in the appellate courts. Don’t risk losing your hard-won reputation with lazy briefing!
Do not try to raise arguments in the reply brief that could have been raised in your opening brief. Many attorneys cannot resist the temptation to bring up new points. This is not permitted, and any attempt to sneak in a new issue on reply will likely annoy the judges and result in a finding of waiver. The reason for the no new issues rule is to prevent an appellant from ambushing the respondent in a reply. As with redirect examination, where the scope of questioning is limited to issues brought out in cross-examination, the scope of the reply is limited to new matters raised in respondent’s brief.
The reply should highlight the strength of your case. Present only your most compelling arguments. Including everything but the kitchen sink will not score points with the judges, and you risk diluting your best arguments.
Lastly, don’t file a reply brief just for the sake of filing it. In extremely limited cases, there may be a strategic reason not to submit a reply. For example, the respondent’s brief may be so deficient or incomprehensible that responding to it may give opposing counsel’s arguments more credit than they deserve. But even in this circumstance, filing a reply may allow you to restate the respondent's incomprehensible argument into one that works in your favor!
In the vast majority of cases, and as long as it adheres to the requirements and guidelines outlined above, you should never forego the opportunity to have the last word by filing a reply.
how i can help you
If you are contemplating an appeal following a loss at trial or on a dispositive motion, or need assistance preparing a strong reply brief, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.
The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.