It is a truism in appellate practice that the respondent/appellee is in the best position; the standards of review and presumptions largely weigh in favor of affirmance, and so winning in the trial court is statistically the best way to win on appeal. In the spirit of making lemonade from lemons, however, one of the benefits and joys of being an appellant is getting to file a reply brief.
In California and federal appellate courts of appeal, reply briefs are nominally optional. In practice, all this means (or at least all it should mean) is that your appeal will not be dismissed for failing to file one. But from the perspective of good advocacy, there is really nothing optional about a reply brief. The opening and responding briefs set the field, and the reply is where the battle can be truly and most effectively joined. Indeed, some appellate judges/justices and clerks report (confess?) beginning their review of a case with the reply for just this reason.
So, what makes a reply effective? Here are a few thoughts:
1. Recall the procedural posture of your brief.
Just as opening and responding briefs should be written to reflect the posture of the case on appeal—acknowledging that the case has already been decided by one court rather than simply repeating arguments in the way they were presented in the trial court—reply briefs should reflect the fact that arguments have already been laid out by both parties. As discussed below, it is often advisable to repeat or summarize a point from an opening brief, but it should be done by reference to that opening brief and without completely reprising the earlier treatment of the issue. Telling your entire story a second time is a sure-fire way to lose the court’s attention and waste your opportunity to make important points.
2. Tell the court why you win, then why they lose.
There are several ways to organize a reply brief. Many advocates suggest following the organization of the opening brief, and that’s a good place to start, but an effective reply will break from the prior structure and present ideas in the way that most effectively rebuts the points raised by the respondent/appellee’s brief. As a jumping-off point, however, I find it useful to organize major points in the following way: briefly remind the court why you should win, describe your opponent’s response, and explain why your opponent’s response is wrong.
3. Frame the material disputes.
One of the benefits of the “Why I Win, Why They Lose” structure is it allows you to set up in point-counterpoint fashion the disputes at the heart of the case. As noted, by the time you are writing a reply, all the issues have been laid out by the preceding briefs. You then have the opportunity on reply to identify where the real disputes lie and frame those disputes for favorable resolution. Done properly, this allows the reply to become the court’s first point of reference when a question needs answering and allows you a modicum of influence over the way the court understands your opponent’s arguments. At the risk of stating the obvious, however, this must always be done honestly. Mischaracterizing or eliding your opponent’s arguments, using strawman arguments, etc., will invariably reduce your credibility with the court. Framing the issues also allows the appellant to jettison distractions. If a responding brief raises issues that are either irrelevant or readily conceded, the reply should say so as simply and briefly as possible.
4. Ensure nothing is lost.
Finally, in framing the material issues on reply, you should ensure that the briefs do not “talk past each other.” If your opponent’s brief ignores any points in your opening brief, be sure to say so in your reply—and consider citing the rule that a respondent/appellee may implicitly concede points raised in the opening brief that they do not respond to in their respondent/appellee’s brief. And check to ensure that your reply does not ignore any substantive points in the respondent/appellee’s brief. Of course, this requires re-reading your opening brief and the response. To impose a little systematic discipline on this process, however, compare the table of authorities in each brief. If there is an authority you cited in your opening brief that is not mentioned in the responding brief, it may indicate a missed point worth highlighting. Likewise, if there is an authority cited in your opponent’s brief that is not mentioned in your reply, you should double-check that there is a good reason for ignoring that authority. (And, the only reason to ignore an authority cited in an opponent’s brief is that it relates to a point so far beyond dispute that it requires no discussion at all.) Some attorneys will physically cross out each point in a copy of their opponent’s brief as they respond to it in their reply brief.
The reply brief is your home-field advantage; you’re not going to walk out of the park in the bottom of the Ninth. And as long as you’re stepping up to the plate, you might as well swing for the fences.