South Carolina Lawyer
Vol. 12, No. 5, Pg. 42.
Writing the Reply Brief
42Writing the Reply BriefBy Thomas R. HaggardA reply brief gives appellant the opportunity to have the last word in the written argument, an advantage that should not be squandered. Although a reply brief usually cannot salvage a case that is already lost because the opening brief was so bad, it can certainly cinch a winning case. On the other hand, if respondent's brief has answered or neutralized the points made in appellant's brief or has raised a point appellant's brief did not address, then an inadequate reply brief will convert what was at least a winnable case for appellant into a lost one. Similarly, an unnecessary or excessively prolix reply brief may so annoy the judges as to put a won case into the questionable category. In other words, a lot hangs on the reply brief.
To understand the function and thus the proper content of the reply brief, one must first consider what the appellant's opening brief and the respondent's answering brief have accomplished, if done correctly. The strategies that have been pursued there will often dictate the approach the reply brief must take.
Appellant's opening brief has one primary purpose-to identify specific rulings or events in the proceeding below and establish that they are reversible error. The thesis is, Thecircuit court erred when it . . . because . . . . If that thesis is not expressly stated in the issue statement and argument headings, then they probably need to be reworked. And anything in the brief that does not support that thesis should be eliminated.
Secondarily, appellant's opening brief should also anticipate and deal with the obvious arguments that respondent is likely to make. This not only gives appellant the advantage of being heard first on these points, it also forces respondent into a defensive posture and dictates, at least in part, the content of respondent's argument.
In most instances, respondent's arguments will track the reasoning of the court below; thus, demonstrating the trial court's error will also serve as the anticipatory refutation of respondent's primary arguments. This will not be true, of course, if the trial court simply did something or reached a conclusion without fully explaining why. Here, appellant should anticipate and defuse only those arguments that respondent will almost certainly be forced to make in support of the decision below. These preemptive strikes, however, should be finessed-woven into the fabric of the argument without expressly identifying them as responses
44 to the arguments respondent is likely to make. Although Respondent will contendthat . . . , this is wrong because . . . is a rather ham-handed way to handle the matter.
Moreover, appellant's opening brief should not be cluttered up with responses to inconsequential respondent arguments that were advanced at trial and that can be easily refuted, since respondent may well abandon them on appeal. In addition, if appellant sees a subtle but compelling argument that respondent has not yet evidenced an awareness of, then it would be foolish indeed to supply respondent with this ammunition, even if the argument can be answered. In either event, if respondent does make the argument, it can be dealt with in appellant's reply brief.
Similarly, appellant should be very cautious in anticipating and trying to respond to attacks the respondent might make upon appellant's own arguments. For example, appellant might be relying on Case A...