THE ART OF THE EFFECTIVE REPLY
A well-crafted reply can be devastatingly effective. Witness the plight of George Costanza, tormented in an episode of Seinfeld by his inability to deliver a witty comeback to a snarky co-worker. (1) Or, consider the more recent pop-cultural phenomenon of dropping the mic, which emphatically punctuates a performance so brilliant, at least in the mind of the speaker, that no one dare follow. (2) Drafting an effective reply brief, (3) however, is one of the most difficult tasks in appellate practice. Replying counsel often face tight deadlines, (4) stingy page or word-count limitations, (5) concerned clients and co-counsel, and opposition briefs as imposing as they are deflating.
Rules of court seldom mandate replies. So, whether motivated by these factors or, perhaps, the lack of a cogent opposition argument to reply to, some may elect to forego the option of filing a reply. This, however, is a mistake--one that could cost you your case. Several reasons support a strong presumption in favor of a reply in every contested appeal.
First, based on the declining frequency of oral argument in federal courts, (6) it is highly likely that a written reply will be the final word the court considers before reaching its conclusion and writing its opinion. (7) Why knowingly forfeit the final word to your opponent? (8) And, if your case is ultimately set for argument, an effective reply is a valuable aid in identifying and refining the most important issues and arguments as you construct an outline for oral argument.
Second, some judges have expressed a preference for retro-reading
briefs, that is, starting with the reply, then working backwards to the opposition, and finishing with the opening brief. (9) Under this paradigm, the failure to file a reply forfeits not the final word, but, even worse, deprives counsel of the invaluable first opportunity to identify the issues and define the parameters of the appeal to their clients' benefit.
Third, a reply is necessary to complete the briefing volley in the dialectic method, which generally consists of a thesis (opening brief), antithesis (opposition), and synthesis/conclusion (reply). Legal-writing guru Bryan Garner recommends employing the dialectic paradigm on a micro-level, such as in a stand-alone piece of legal writing, or even in the discussion of a single issue. (10) Garner's sage advice is equally applicable on the macro level when considering the entirety of a case's adversarial back-and-forth briefing in the context of dialectic resolution.
Fourth and finally, counsel should always be on guard against false confidence in their likelihood of success absent a reply. As one appellate advocate noted: "[N]o matter how weak you consider the respondent's brief, there is no assurance the court will agree with your assessment." (11)
Assuming that you are now thoroughly convinced of the need to file a reply, there are a few tried-and-true principles to guide you through the writing process. One bright-line prohibition is obvious, yet evidently violated enough to bear repeating--do not introduce new issues in your reply that are missing from your opening brief. (12) For instance, counsel may be tempted to save certain issues or arguments for a reply (13) in an effort to sandbag an appellee presumptively prohibited from filing a sur-reply or supplemental opposition brief. (14) Avoid this temptation not only as a matter of professionalism and common courtesy, but also because most courts refuse to consider new issues raised for the first time in reply. (15) Moreover, a failed attempt to introduce new material in a reply will likely cost you valuable credibility with the court. (16) By way of analogy, think of an effective reply as a rehabilitating re-direct of your key witness after cross-examination. Trial counsel should not raise entirely new topics in re-direct, but are typically limited to the scope of the cross-examination. (17) So too should you limit your reply to the scope of an opposition brief. (18)
A second bright-line prohibition is universally advised, but not always adhered to--don't respond in kind to personal attacks from opposing counsel. (19) This advice isn't always easy to follow in the heat of a briefing battle, especially since lawyers tend to be a naturally aggressive and competitive group, (20) inclined to meet personal attacks head-on. Measured discretion in reply, however, is the better part of valor. Judges "heartily dislike" antagonism. (21) Dissecting arguments "calmly and dispassionately" is favored over indignation, (22) righteous or not. A tit-for-tat response to a personal attack is, at best, unnecessary and ineffective; at worst, it "suggest[s] to the seasoned reader that you're weak on the merits. (23) And to the extent you can't objectively ascertain the often-blurry line between a necessary correction of the...