Tuesday, February 24, 2015

Supplemental Briefs

Sometimes, judges ask parties to submit supplemental briefing on issues, provide additional documents, or clarify facts. This may happen if the judge feels the parties failed to adequately address a particular issue, a question arose during oral argument or after initial briefs were filed that neither party briefed, or the judge needs additional facts that might be outcome determinative.

Judges may ask the parties to submit short supplemental briefs or send letter briefs with the requested information. Always follow the judge’s instructions, but keep a few things in mind when submitting supplemental briefing.

Remind the judge what you were asked to do. Judges are very busy people. And, like lawyers, judges often are juggling many cases at once. The judge may ask for supplemental briefing then forget why she asked. Judges are human—this happens. So never hesitate to succinctly remind the judge why you’re filing or sending a supplemental brief. A single sentence, like this one, will do: The Court asked the parties to address the question of whether Plaintiff’s claim is barred by laches.

Address only the issues you were asked to address. Do not try to use your supplemental brief to reiterate the points made in your initial brief(s). The judge asked for specific information and you should provide that information—and that information only. You can certainly reference your initial brief, but don’t repeat the arguments made in it. And don’t try to use a supplemental brief to make arguments not made in your initial brief or address issues you weren’t asked by the court to address. The opposing party will almost certainly ask for an opportunity to respond to those newly made arguments, and the judge will not be pleased.

Don’t exceed the page limit. If the judge requests supplemental briefing and sets a specific page limit, stick to that page limit. The judge likely is asking for very specific information, case law, or arguments, and does not want to have to review more full-length briefs. If the judge said you get two pages, only provide two pages. In any event, keep your supplemental brief as short as possible—just because you get five pages doesn’t mean you have to use all five.

Clarify facts, if asked, but don’t restate facts outlined in your initial brief. Sometimes a judge will ask parties to clarify facts that the judge believes could be outcome determinative. Unless the judge asks you to do so, you don’t need to restate the facts in a supplemental brief. You can assume the judge knows the facts from the initial briefs or oral argument, or both.

Include relevant authority or admit if there is none. Sometimes legal issues will arise during oral argument that neither party previously addressed or considered. Judge may ask the parties to provide a supplemental brief to address those issues. If you find relevant authority, include it in your supplemental brief—you might even attach a copy of the authority for the judge’s convenience. If there is no authority on point, say that, reference your prior arguments, and remind the court what you want.     

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.