Saturday, September 10, 2022
Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.
1. Begin with a concise and powerful introduction.
Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.
After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.
2. Focus on what your adversary did not say.
Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.
3. Respond to some of your adversary’s arguments.
The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments. If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.
Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.
4. Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.
The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.
Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.
5. Write your reply brief with the expectation that it may be the first document that the judge reads in your case.
Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues. This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.
6. Maintain consistency with your initial brief.
Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.
7. Keep it short and re-enforce your theme.
Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.
8. End strong.
A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.