Reply briefs: rules and protocol in the battle for the last word.

• Author: Pressly, Finn
• Position: Florida

The Florida Supreme Court in Boca Burger, Inc. v. Forum, 912 So. 2d 561, 573 (Fla. 2005), recently adopted the Fourth District's maxim that outcomes should not "depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last word." Though the court directed this warning at unsavory trial tactics, appellate attorneys are wise to keep this rule in mind--especially when it comes to the battle for the last word.

In the appellate arena, Florida Rule of Appellate Procedure 9.210(a) specifically grants the last word to the appellant through the reply brief. Rule 9.210(a) provides that "the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief." The cross-reply brief is only permitted when there has been a cross-appeal, which turns the appellee into a cross-appellant. Naturally, the rules grant the cross-appellant the final word in his or her cross-appeal (1) in Rule 9.210(e).

The Role of the Reply Brief

Rule 9.210(d)-(e) narrowly defines the role of the reply brief, limiting its content to rebuttal of the arguments made by the appellee in the answer brief. As the First District recognized in St. Regis Paper Co. v. Hill, 198 So. 2d 365,366 (Fla. 1st DCA 1967), "[t]he office of a reply brief is to respond to new matters contended by an opposing brief." Even though the reply brief does not provide the appellant with an unrestricted forum, appellants sometimes abuse their right to the last word (often inadvertantly), leaving the appellee with no opportunity to respond.

Florida courts have consistently prohibited appellants from arguing new issues in their reply briefs. "An issue raised for the first time on appeal in appellants' reply brief, even though properly preserved for appeal, will not be considered by this court." (2)

Despite such clear pronouncements from the courts, the reply brief is often subject to abuse by appellants. When new issues are introduced in the reply briefs, even experienced appellate practitioners find themselves at a loss. The rules do not provide a particular mechanism for responding to inappropriate reply briefs2 Likewise, case law does not establish a preferred means of drawing the court's attention to the infraction.

Generally speaking, each appellate district--if not each judge--has its own stance on how to respond to improper reply briefs. When asked how an appellee should...