Document Type

Article

Publication Date

Summer 2023

Abstract

This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.

The essay then turns to the more difficult challenges of crafting the brief, making three key points:

First, don't just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent's terms. Rather, re-frame the case on your client's terms, taking the case back from the appellee and weaving your responses to the appellee's argument into your basic thesis statement(s).

Second, don't respond to everything your opponent says that you view as incorrect, misleading, or annoying; rather, be the adult in the room, and respond only to things that matter. Judges and law clerks will appreciate this measured, mature, and economical approach.

Third, bear in mind the relationship between the opening brief and the reply brief. When writing your opening brief, anticipate the appellee's arguments and think hard about whether your opening brief should serve as a reply on some key points. If the opening brief does this fairly, you can gain the court's trust as a straight shooter, while preempting the impact of the appellee's arguments by outing them in the first place. Then, when it's time to write the reply brief, you can call back your earlier brief and reply economically on the points you've already discussed.

Publication Citation

The Journal of Appellate Practice & Process, Vol. 23, Issue 2, Pp. 395.

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