Sunday, November 6, 2011
Drafting advice and tactics from two expert appellate lawyers courtesy of the New York Law Journal:
Although reply briefs are optional, it is generally advisable to file a reply brief lest the respondent's unanswered arguments take hold before oral argument is heard or the lack of a reply is viewed as a concession of the validity of those arguments. More to the point, few lawyers can resist the temptation of having the last word when the opportunity presents itself.
A reply brief's mission is different from an opening brief. A reply gives the appellant an opportunity to answer the questions the reviewing court may have after reading the respondent's brief. The court may need to know more about the key facts, the relevant case or statutory law, or the policy considerations that militate against the respondent's position. All too often, however, reply briefs fall into one of two categories: one that merely rehashes the appellant's main arguments without replying to the respondent's opposing arguments in any meaningful fashion, or one that goes tit-for-tat with every factual and legal argument in the respondent's brief. These types of reply briefs do little to advance the appellant's cause and should be avoided.
Rules of Practice
First, a few words about the formal requirements for reply briefs. CPLR 5528(c) provides that a reply brief "shall conform to the requirements" for an appellant's brief "without repetition." Theoretically, this would include a statement of the questions presented, a statement of the nature of the case and relevant facts, and the argument divided into points by distinctive headings (see CPLR 5528[a]). In practice, there is far greater flexibility in preparing the reply brief than the appellant's brief, and the courts rarely reject a reply brief that departs from the statutory format. Indeed, the customary format consists of reply points only, without redundant preliminary statements or the like.
Reply briefs should be as concise as possible, and the Appellate Divisions have express page limits for reply briefs.1 On cross-appeals, the respondent-cross appellant may file a reply brief limited to the issues raised on the cross-appeal after receipt of the appellant's reply brief.2
There is no provision for a sur-reply brief in the rules of the Appellate Divisions. The rules of the Court of Appeals specifically prohibit sur-replies.3 Nevertheless, the courts will occasionally grant a motion for leave to file a sur-reply brief for good cause shown.4
Post-argument and post-submission communications to the court, concerning motions and appeals, in the form of letters, memoranda or briefs, are also prohibited.5 Permission to file such documents should be sought by submitting a copy of the proposed communication to the court clerk, with a request that it be accepted and distributed to the court that heard the motion or appeal. Permission is rarely granted, except where the court specifically requested or authorized additional submissions, for example, to clarify an issue raised during argument.
Structuring the Reply Brief
Even though the time to file a reply brief is shorter than other briefs, it is a mistake to put pen to paper before thoroughly analyzing the respondent's brief, and asking two basic questions: What questions will the court have after reading the respondent's brief, and what are the greatest factual and legal vulnerabilities of both side's positions? The answer to these questions will determine the content of the reply brief. It is often useful to have a "stranger" to the appeal—for example, a work colleague with no prior involvement in the case—read the appellant's and respondent's briefs for a fresh perspective on these important questions.
After determining what you want to say in your reply brief, the next issue is the order in which you want to say it. If the respondent's counsel is a skillful appellate advocate, he or she will have organized the respondent's brief by presenting his or her strongest arguments first, regardless of the order of the points in the opening appellant's brief. For this reason, it is usually a mistake to adopt the organization of the respondent's brief by replying to each of the respondent's arguments in the order in which they appear. Rather, a reply brief generally should follow the same organizational structure of the opening appellant's brief as a means of refocusing the court on the principal issues.
Once the content and order of the reply points has been established, several basic considerations should be kept in mind in writing the reply brief. The following list is illustrative, not exhaustive.
First, a reply brief should not attempt to correct every point of disagreement or minor factual inaccuracy in the respondent's brief. Rather, it should address and correct material factual misstatements made by the respondent. There are creative ways of doing so. For example, if the respondent's brief misstates one or more critical facts, a chart or table in the format at right can be used to challenge such misstatements in a way that is visually attractive, easy to understand and effective in arguing the case on the basis of the record facts.
Second, a reply brief should not address every legal argument made by the respondent, no matter how peripheral. Rather, it should concentrate on the key legal issues in the case, not only rebutting the respondent's principal arguments, but also re-emphasizing the appellant's principal arguments. Again, the goals are to identify and answer the questions that the court will most likely have after reading the respondent's brief, to reply to arguments that ostensibly undercut the appellant's position, and to restore the court's focus to the appellant's main arguments in a concise and non-repetitive manner.
Third, a reply brief should not distinguish every case cited by the respondent (all of which should immediately be cite- and substance-checked upon receipt of the respondent's brief). Generally, only the respondent's "lead" authorities warrant detailed analysis. If the respondent's brief string cites multiple cases standing for the same proposition, then the reply brief should address them on a global rather than individual basis. A reply brief is a useful vehicle for bringing to the court's attention a controlling or persuasive case decided after the filing of the appellant's main brief. This underscores the importance of continuing to research the law up to the date of filing of the reply brief, and then, right up to the date of oral argument.
Finally, in the case of a cross-appeal, the appellant-respondent generally files a combined responsive brief, i.e., a reply on the main appeal and answer to the cross-appeal in one document. It is advisable to address the cross-appeal in the last section of any such combined brief because a disposition in the appellant's favor on the main appeal may well render the cross-appeal academic. In drafting an answer to the cross-appeal, the appellant-respondent should adopt a respondent's mind-set for purposes of the cross-appeal. For example, as a preliminary matter, the court's jurisdiction to entertain the cross-appeal should be considered: Is the cross-appellant truly "aggrieved" by the order or judgment from which the cross-appeal has been taken, or is the cross-appeal a pretext for the cross-appellant to gain the last word through a reply brief on the cross-appeal? If the latter, a motion to dismiss the cross-appeal is in order.
Scope of a Reply Brief
While it may seem obvious, it is worth stressing that the proper purpose of a reply brief is to reply, not to present new arguments or matters at a time when the other party can no longer respond to them. As the court stated in the oft-cited State Farm Fire and Casualty Co. v. LiMauro decision, "[i]t is beyond cavil that raising a new substantive issue of law for the first time in a reply brief is improper,"6 and this is one of the principal grounds for litigation concerning the proper scope of reply briefs.7 Even arguments of a constitutional dimension will be deemed waived when improperly raised for the first time in a reply brief.8
There is no hard and fast rule as to what constitutes a truly "new" substantive argument in a reply brief. After the submission of the main motion papers to the lower court in State Farm, the plaintiff State Farm contended for the first time in reply papers that Florida law, not New York law, governed the case. The trial court apparently ignored this new argument by applying New York law.
Neither State Farm's pre-argument statement nor its main appellate brief pressed the choice of law issue. In its reply brief, however, State Farm relied upon Florida law. The respondent moved to strike the references to Florida law in the reply brief, contending that State Farm Fire should not be allowed to raise the applicability of Florida law for the first time in reply when there was no opportunity to respond. The Appellate Division denied the motion to strike on the ground that State Farm had merely cited Florida law as persuasive, not controlling, authority:
We need not, however, consider whether raising in a reply brief an issue submitted in reply at [the trial court] constitutes raising a new issue for the first time, for a reading of the reply brief convinces us that State Farm Fire is resigned to the application of New York law, and merely cites Florida law as persuasive, not controlling, authority. As such, there was nothing improper about the references, and the motion to strike is denied.9
There are circumstances in which courts will permit new matters, such as matters of public record, to be asserted in a reply brief. For example, in High v. City of White Plains,10 the cross-respondent moved to strike certain exhibits annexed to the cross-appellant's reply brief on the ground that those exhibits contained matters outside the record. The motion was held in abeyance and referred to the justices hearing the appeal for determination upon the argument or submission of the appeal. The court in High ultimately denied the motion to strike "since the exhibits at issue, although not submitted to the court of first instance, are matters of public record that may be judicially noticed."
A motion to strike is the proper remedy for an improper reply brief.11 In some instances, the court may strike only the offending portion of an otherwise acceptable reply brief. In Brosnan v. Behette,12 for example, the court granted the respondent's motion "to strike Point VI of the appellants' reply brief on the ground that it raises an issue not raised in the appellants' main brief." Alternatively, the court may simply disregard the new arguments or matters raised for the first time in a reply brief, even without a motion to strike. This was the result in Turner v. Canale,13 where the court stated, "[w]e note in addition that the contentions raised for the first time in plaintiff's reply brief are not properly before this Court."