Reply briefs.

• Jurisdiction: United States

Section 85. Reply briefs.—The basic question under this heading is whether any reply brief should be filed at all.

Two circuits forbid the filing of reply briefs except to answer new points; reargument of what already has appeared in the brief-in-chief falls under the ban.¹⁴⁵ The late Mr. William D. Mitchell wrote that "It should be a rare case where * * * a reply brief * * * is justified. In his brief * * * an appellant should be able to cover adequately his own case and anticipate his adversary's."¹⁴⁶ I entirely agree that—subject to the qualifications below—reply briefs should be sparingly used.

(a) Normally, when the issues are clearly drawn, don't file a reply brief; you only discourage the court by burdening it with more matter to read.

(b) When the other side fuzzes up the issues, and you can reclarify the discussion with a short reply brief, it may well be helpful to do so.

(c) When the other side raises an entirely new point, and it is a point of substance, by all means meet that new point in a reply brief.

(d) When the court (or any member thereof) asks at the argument whether you intend to file a supplemental memorandum on a particular question, you must do so. Such an inquiry regardless of its tenor or form, is the equivalent of a command.

If you decide not to file a reply brief, that solves the problem. If, on the other hand, you feel that a last word is imperative, be sure that your reply brief is short, that it is not simply a rehash of the same ground, and that it hits hard. For instance:

The company's brief on reargument, filed October 8, 19— (hereinafter cited as A.B. 2d Br.), fails almost completely to meet the contentions made in the Government's main brief on reargument (cited as U. S. 2d Br.). In addition, the company's brief at a number of places misstates the record.

We shall endeavor to deal, as summarily as possible, with the basic errors contained in that brief, and thereafter with the specific matters in it which seem in most urgent need of correction.

I. THE COMPANY'S BASIC MISCONCEPTIONS

The company's position rests upon three basic errors which reach to the heart of the case.

First.—The Company's brief throughout proceeds on the assumption that the Act of June 25, 19—, declares a common-law forfeiture. Yet, as we have shown at some considerable length (Point I, U. S. 2d Br. 60-79), that assumption is wholly without foundation. Our argument on that point is not met, and the legislative material adduced in support of our...