SOME THOUGHTS ON REPLY BRIEFS.

• Author: Wolfman, Brian

1. INTRODUCTION

   Legal-writing expert (and my former colleague) Sue McMahon asked recently for advice on writing reply briefs. Sue was planning to teach the subject to her legal-writing students and wanted input, so I emailed her a few thoughts.

   I'm glad Sue is teaching about reply briefs because, though reply briefs are important litigation tools, most law students are not formally taught about them. I direct the Georgetown Law Appellate Courts Immersion Clinic--where law students litigate public-interest appeals--and we write reply briefs frequently. When my students arrive in clinic in their second or third years of law school, none has had instruction about writing replies. That's understandable. Teaching time is limited, and it's hard to fit in everything. I cover replies only about half the time in my Appellate Courts & Advocacy Workshop, (1) a doctrinal class on the law of appellate courts that also touches on brief writing. The bottom line is that most new lawyers haven't given much thought to reply briefs, but they should. For that reason, and urged on by Sue's inquiry, I wrote this essay aimed at new litigators and law students as well as legal-writing instructors, who may want to incorporate the ideas here into their teaching or even ask their students to read this essay.

   Four preliminary thoughts:

   First, and perhaps counterintuitively, the reply brief is often the appeal's fulcrum--the place where the case crystallizes. The appellant's lawyer wants to do everything possible to understand the law and the record, and to anticipate all the case's strengths, weaknesses, and traps when writing the opening brief. So I hope to have a comprehensive understanding of the case and bring it to bear from the start. As time has gone on, I've gotten better at that. But even the best appellant's lawyer will agree, I think, that it's not until you've seen the answering brief--in which your arguments have been subjected to the crucible of real (not hypothetical or imagined) dispute--that the appeal in all its beauty (or ugliness) is fully realized. That means that the reply brief--no matter its length or complexity--often is a critical tool in the appellant's overall presentation.

   Second, and relatedly, reply briefs should not be overlooked because they are filed near or at the end of the litigation process. Quite the contrary. The reply brief is important to appellate practice in large part because it is typically the last significant written advocacy in the appeal--and, generally, the last major submission that the judges and law clerks will read. If recency matters, then reply briefs matter.

   Third, reply briefs are especially important for some practitioners. They've been important to my practice--and thus my clinical teaching--because I tend to represent appellants, the parties entitled to file replies. Public-interest appellate lawyers represent appellants (as opposed to appellees) disproportionately, including especially appellate public defenders. Typically, it's not great to have lost in the lower court, but a silver lining is that appellants get the last word, and they should try to make the most of it.

   Fourth, this essay focuses on reply briefs in typical three-brief appellate litigation, though much of what I say here applies to reply briefs in trial practice (such as a reply in support of a motion for summary judgment). So, when I refer to a reply brief in this essay, I mean what is typically the third and last brief filed in standard appellate practice--the brief filed by the appellant in response to the appellee's (answering) brief. There are other types of replies, such as answering briefs and responses filed in simultaneous-briefing scenarios and in cross appeals. Some of what I discuss here applies in those other contexts, but, again, in general, I'm referring to the reply brief filed by the appellant in the standard three-brief setting.

   And now, on to what I view as key attributes of a good reply brief. I welcome comment and criticism.

2. BASIC PREPARATION FOR WRITING A REPLY

   Preparation for writing a good reply brief is simple and well understood, so much so that what follows in this section may seem obvious. But here's the minimum that I do and ask my students to do.

   First, consider your opponent's arguments comprehensively. List each of your opponent's points, no matter how small or seemingly unimportant. This technique may be enhanced by creating a so-called reverse outline of your opening brief. Look back carefully at that brief, succinctly summarize its arguments in bullet point or outline format, then map each of your opponent's points on to your initial arguments by adding them to that outline. This may help you determine what, in particular, your opponent has responded to and how, and it will identify your opponent's omissions--that is, what your opponent has not responded to at all. This approach may also help ensure that the review of your opponent's answering brief is comprehensive. And, in drafting the reply brief itself, using this technique may facilitate in assembling thematically related arguments in one place, as discussed in more detail in part IV below.

   Experienced practitioners may feel comfortable not listing minor or irrelevant points raised by the appellee. But err on the side of inclusion. Comprehensive identification of your opponent's plausible arguments is critical for advocates who are new to this game. And, besides, covering the waterfront can't hurt.

   For each of your opponent's arguments that challenge points in your opening brief or that otherwise may require a response, research and write out a counterargument. This doesn't mean you are going to respond in your reply brief to...