To Answer Or Not To Reply: Considerations On Appeal

H. Lee Lewis

Appellate procedural rules give the appealing party the pick to submit an boosted brief after receiving the answering brief of the opposing party. This is a huge opportunity that should not be squandered. The part of the reply brief is elementary and very limited: to reply but to the points made in the respondent'south brief. But the rhetorical purpose is much more than important: to get the terminal word! Unfortunately, instead of using the opportunity to make a potent impact on the courtroom by submitting a curtailed presentation that systematically dismantles the opponent's arguments, many practitioners submit a reply brief that does nothing more than rehash arguments set along in the original brief, or worse, tries to innovate new points that should have been introduced initially. Neither volition be well-received by the court.

At that place are many proficient reasons to submit a reply cursory. After all, who doesn't want to have the last discussion in an argument? Moreover, the "recency result," in which more recent information is often better remembered and given greater weight, is a valid psychological principle. As long as certain do'south and dont's are kept in mind while preparing a respond, the valuable opportunity to have the last word should not exist wasted.

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THE Practise'S OF REPLY BRIEFS

Washington Rules of Appellate Procedure state that a reply brief must be "limited to a response to the issues" in the respondent'southward brief. Be sure to heed this bones requirement. That said, there is so much that a carefully prepared, well-written reply tin can accomplish. In some cases, the judges and law clerks who read the briefs will start with the reply. With this in mind, the reply should read similar a stand-alone document. Information technology should include the critical facts and the near persuasive legal arguments. It should also tell a story, presenting an overarching theme and tying all the narrative elements (setting, grapheme, plot) together to accomplish a compelling conclusion: y'all win.

"If your respond is nothing more than a rehash of the arguments ready forth in your initial brief, the judges may think it - just not in a good fashion."

Be as concise equally possible. Go to the heart of the matter on the first page of your cursory, and only include what is necessary to make your betoken. A curt reply tells the courtroom that you are confident most your position.

As soon equally the opposing cursory is received, you should update your research to meet if any new cases have come out since the original filing. If so, the reply is the perfect opportunity to bring new information to the court'south attention. The instance must actually be new, in that it came out during the intervening period of fourth dimension between the filing of appellant'due south brief and the filing of the reply. Information technology cannot exist "new" in that it was missed during your research the starting time time. Don't forget to shepardize the cases you cited in your initial brief to be sure they are still good law.

If the respondent either failed to address whatever arguments in your opening cursory, or even conceded any significant problems, be sure to highlight this in your reply and fence waiver, if applicative. In add-on, if respondent cites a case not discussed in the opening brief, and yous tin argue that it is either non controlling or distinguishable, or respondent makes a misstatement of fact or an irrelevant argument, your reply should highlight these points every bit well.

Finally, a word about credibility. While the basic purpose of a reply is to address arguments raised in respondent's cursory, continue in mind that a good opening cursory anticipates the opponent'southward position, addresses them head on, and doesn't avoid bad facts or police force. While this is e'er a delicate residual for a brief writer (you don't desire to bring up arguments that your opponent might miss), your candor will likely requite you credibility with the court.

THE DON'TS OF Answer BRIEFS

First and foremost, practise not treat the reply brief as an afterthought. Put every bit much thought and effort into it every bit you lot did with the initial brief. In some ways, the reply is more important than the original filing. It is where your arguments and those of your opponent are viewed side by side, and - if the reply does what it is designed to do - clearly and unequivocally resolves the issues in your favor.

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Don't merely give the court a condensed version or executive summary of your opening brief. This just wastes your time, your client's money, and, most chiefly, risks losing the court's attention and involvement in your statement. If your reply is nothing more than a rehash of the arguments set forth in your initial brief, the judges may remember information technology - but not in a good way. Credibility is extremely important when arguing in the appellate courts. Don't risk losing your hard-won reputation with lazy briefing!

Practise non try to raise arguments in the respond brief that could accept been raised in your opening brief. Many attorneys cannot resist the temptation to bring upwardly new points. This is not permitted, and any attempt to sneak in a new outcome on respond volition likely annoy the judges and upshot in a finding of waiver. The reason for the no new issues rule is to foreclose an appellant from ambushing the respondent in a reply. Equally with redirect test, where the scope of questioning is express to issues brought out in cantankerous-examination, the scope of the respond is limited to new matters raised in respondent's brief.

The reply should highlight the strength of your case. Present only your about compelling arguments. Including everything simply the kitchen sink volition not score points with the judges, and yous risk diluting your best arguments.

Lastly, don't file a reply brief just for the sake of filing it. In extremely limited cases, there may be a strategic reason not to submit a reply. For example, the respondent's brief may be so scarce or incomprehensible that responding to it may requite opposing counsel's arguments more credit than they deserve. But even in this circumstance, filing a reply may allow you to recapitulate the respondent's incomprehensible argument into one that works in your favor!

In the vast bulk of cases, and every bit long as it adheres to the requirements and guidelines outlined above, you should never forego the opportunity to have the last word past filing a reply.

how i can assistance you

If you are contemplating an appeal following a loss at trial or on a dispositive motion, or need help preparing a strong reply cursory, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Electronic mail H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed equally legal advice on any thing.