Zen and the Art of a [Brief] Reply
Nov 20, 2018
By: Katie Burghardt Kramer
The original article is published in the ABA Litigation Journal, Volume 44, Number 4, Summer 2018
Reply briefs are tricky—you can’t say anything entirely new, but you need to say something new. How do you find the right balance? How do you maximize the opportunity to have the last word? I offer a few brief tips.
Keep it short. Hit only the necessary points—and then stop. You already made your points in the opening brief, so the reply brief should focus on only the most important issues. Typically, the judge (or the clerks) will read the main brief, response, and reply in sequence. And they will read the briefs all at the same time, so any repetition will be even more apparent. If you find yourself reading the opposing brief and saying, “Yup, that’s what I expected,” then consider making the reply brief only a page or two. You have already made your arguments in anticipation of what the opposing side will say, and you may have little new to add.
Omit your secondary arguments. Often an opening brief will include more than one argument for the same point—a belt-and-suspenders approach. You know which are the weak ones—those are the points tucked away in the final sections, with sufficient merit to warrant inclusion, but they won’t carry your reply brief. Your opening brief does enough with them already.
Don’t copy-paste anything from your opening brief. Even if you think your opening brief was pure poetry, don’t copy-paste anything from it into your reply. The judge will notice. If you think the opposing party misconstrued your argument, say so, rather than regurgitating your original argument without further analysis. Copying a section of the original brief is like repeating something in a louder voice—it doesn’t lead to greater comprehension, just annoyance. By the same token, don’t quote large chunks from the opposing brief. The shorter page limit for a reply is precious real estate, so don’t squander it with your opponent’s words.
Respond up front to any unanticipated arguments. Sometimes the opposition brief contains a surprise twist—an unforeseen argument or compelling legal precedent that you missed. Responding to those unanticipated arguments should come first in your reply because the court will be most interested in seeing your response to the new points.
Highlight any of your arguments that remained unanswered. Sometimes opposing counsel will skip one of your arguments in drafting a response brief, perhaps unintentionally or hoping no one will notice. Identify early in your reply the points your opponent failed to answer. This also helps the court to confirm that it didn’t miss your opponent’s rejoinder to a particular point. Because your argument was not opposed in the response, you don’t need to repeat it—you just need to point out that the other side failed to counter your argument.
Don’t make any new arguments. This should go without saying, but don’t make any new arguments in the reply brief. The opening brief frames the issues, and then the reply brief operates as a further distillation of those arguments into their essential components. Thus, approach the opening brief with appropriate diligence in raising all the best arguments, and don’t rely on the reply brief as a second chance to do so.
Don’t accuse the opposing party of being disingenuous or frivolous. Even if you roll your eyes when you read the opposing brief, don’t get personal in addressing the merits. The opposing counsel has an obligation to present a rigorous defense of his or her client—and you never know what arguments might resonate with the court. Something that strikes you as disingenuous may simply strike the court as zealous advocacy, and then you lose points by hurling accusations at the other side.
Reiterate the relief sought. Close your reply brief by repeating the relief you’re seeking. Most likely, the conclusion of your reply brief is the last thing the court will read before beginning to formulate a decision. You should provide clear guidance that stays fresh in the judge’s mind as he or she contemplates a ruling. Also, you can help save the court valuable time by clearly stating the scope of what you’re asking for. If you’re asking only for summary judgment on three counts, make sure to say that so the judge doesn’t need to flip back to the end of your opening brief to find the requested relief or—worse—read through your brief to piece together what you’re requesting.
Surreplies: Don’t do it. There is a good reason the procedural rules allow only three rounds: It’s almost always enough. I have heard a story of a judge presiding over a matter in which the parties kept filing surreply upon surreply. He reportedly castigated the attorneys: “This is not a Zen proceeding! It has a beginning! It has an end!!!” Indeed. Some of us have trouble not having the last word. Insisting on that is guaranteed to annoy the court, which alone is reason to skip it.
Surreplies: OK, very rarely. Because, as every lawyer knows, the answer is always “it depends,” narrow circumstances may warrant a surreply. For example, if an appellate court releases
a decision directly on point between the filing of the opposition and the reply, the reply would rightfully include some new subject matter. In that situation, no one would begrudge you the chance to address the new decision as well, in a surreply. However, if you expect to have oral argument, you could skip the surreply and instead begin your argument by addressing the new point raised in the opposing party’s reply brief. If the point is truly new and revelatory, the court may grant you permission to file a surreply after the argument—but keep it short!
Reply briefs do serve a legitimate purpose in book-ending your arguments. But as with any effective writing, and effective advocacy, less is usually more.