Tuesday, September 16, 2014

No Reply at All?

At the NACDL conference, where I spoke this weekend, several attendees asked me about reply briefs—when do you need to file one, how should you structure one, and when should you save arguments from a reply brief?

Reply briefs are tough, but here are the rules I live by:
You must think hard about whether you really need a reply brief. As lawyers, choosing not to file a reply brief is difficult because we want to be the most zealous advocates possible for our clients. But as Judge Easterbrook has noted, most reply briefs are really “repeat” briefs.

I doubt the argument that reply briefs are essential because many courts read them first. I don’t read reply briefs first, and I have spoken to many clerks and judges who don't either.  But a kind reader, Chris, emailed to let me know that he's met several judges who do read reply briefs first and use them to gain a clearer picture of the true issues. Chris noted that strong, succinct reply briefs can be immensely helpful for time-pressed judges and clerks. And I agree.

In my opinion, though, using a reply brief to regurgitate the arguments made in your initial brief is unnecessary and burdens the court. But you should file a reply brief if: 

-Opposing counsel raised a counterargument in the response brief that you did not address in your initial brief; or

-You neglected to include a good argument in your initial brief that you want the court to consider; or

-You believe opposing counsel has seriously misstated or misrepresented material facts and you need to correct the court’s understanding of the facts; or

-You feel you absolutely must get the last word in and the court will or may decide the issue solely on the briefs 

But note that the second scenario may result in opposing counsel asking to file a sur-reply brief, and the fourth scenario should be the exception, not the rule. 

If you do choose to file a reply brief, keep it as short as possible. In your reply brief, you can reference or quickly summarize the arguments in your initial brief (thus reminding the court of the strength of those arguments), but you should do so succinctly then move on to address any remaining issues or make additional arguments.*

A reply brief should be structured like an initial brief, but without a statement of facts—you should simply reference the facts provided in the initial brief. Use subheadings to organize your arguments, starting with your best argument first. If you re-cite authority that was cited in your initial brief, provide another full cite for the authority in your reply brief.

If you are certain opposing counsel will make specific counterarguments in response to your motion, you likely will want to address those counterarguments in your initial brief. Doing so will enable you to “get out in front” of any bad facts or bad law and minimize the harm to your client’s case. You should save arguments for a reply brief, however, if: 

-You are unsure if opposing counsel has thought of or will raise certain counterarguments; or

-Opposing counsel’s counterarguments are poor 

Obviously, you don’t want to shoot yourself in the foot by making a counterargument for opposing counsel, especially if you aren’t sure it’s one opposing counsel will actually make. Wait to see if opposing counsel makes that counterargument first, and if made, address the counterargument in your reply brief.

And if you know opposing counsel intends to make an asinine counterargument, don’t give that crazy argument undue credence and sully the good arguments in your initial brief by trying to respond to it there. Instead, use your reply brief to remind the court of your good arguments and then quickly and succinctly address and dismiss the counterargument. 

*Chris also pointed out that some clerks and judges might assume a party that doesn't file a reply brief is conceding his position. This is a good point, but I hope to convince those clerks and judges that their assumption is mistaken, and lawyers are doing them a favor by not filing repeat briefs.

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