Tips for Response Briefs

Many people tell me they think response briefs are much more difficult to write than initial briefs. I agree response briefs can be tricky—especially if the opposing party’s initial brief is poorly written. But, believe it or not, the basic outline for a good response brief isn’t much different than that for a good initial brief. Follow these tips for a strong response brief:

Address the facts

Remember: law is important, but the facts are the backbone of any case. Without facts, there’s nothing to apply the law to. The facts are a crucial part of any brief (and any response brief), so make sure the reader is clear about the facts before you do anything else. If the moving party’s version of the facts is accurate, there’s no reason to re-state them again in your brief. Tell the reader that you agree with the moving party’s facts, and move on to your argument.

If you take issue with or need to clarify some (or many) of the moving party’s facts, tell the reader that you agree with certain facts—and tell the reader which ones—but state that you must address others. Then discuss why those facts at issue are incorrect, citing to pleadings and, if appropriate, other evidence to support your position. Make sure the reader is clear about the facts before you address anything else.          

Make your argument first, then address your adversary’s argument

Address the facts and fully outline and argue your position, then respond to your adversary’s counterarguments. If you put your adversary’s arguments front and center in your brief, you may unintentionally give them more credence than they deserve and weaken the force of your own arguments. Instead, make your points first, without mentioning your adversary’s position, then address your adversary’s arguments.

Let’s take a simple choice of law issue. The plaintiff argues that New York law applies and he prevails, but you want to argue that California law applies. Instead of starting the response brief by talking about New York law and why the plaintiff shouldn’t prevail under it, start with your best argument—that California law, not New York law, applies. Once you’ve argued that California law applies, argue that the plaintiff can’t (or hasn’t proven that she must) prevail under California law. Then address why the plaintiff doesn’t or can’t prevail even if New York law does apply. Thus, you’re response brief will look like this: 

1. California law applies because…
2. Plaintiff cannot prevail (or has not proven as a matter of law   that she must prevail) under California law because…\
3. Even if New York law applies, as Plaintiff contends, Plaintiff still cannot prevail (or has not proven as a matter of law that she must prevail) because…   

Or this:

1. California law applies and Plaintiff cannot prevail (or has not proven as a matter of law that she must prevail) under California law because…
2. Even if New York law applies, as Plaintiff contends, Plaintiff still cannot prevail (or has not proven as a matter of law that she must prevail) because…  

Don’t try to address your adversary’s arguments first then make your own or—worse—address your adversary’s arguments while simultaneously making your own. You’ll just end up with a disorganized brief that doesn’t do a good job of either.

Make concessions, if warranted

If concessions are warranted, don’t be afraid to make them. Let’s use the choice of law example again and alter the facts. Assume that if New York law applies, the plaintiff will prevail. Don’t try to argue that your client will still prevail under New York law if he won’t. Make the concession—you’ll increase your credibility greatly and narrow the issues for the court to decide. If you concede that your client will lose if New York law applies, that is one less issue the judge will need to consider, thereby giving the judge more time to focus on your strongest argument—that California law applies and is favorable to your client. I’ve made this point before, but it’s especially applicable when responding to an initial brief: save your energy for good arguments and don’t waste your time (and credibility) on losing ones.