Home field advantage: Making the most of your reply

There can be little doubt that the respondent/appellee enjoys the bulk of benefits on appeal; the standards of review and presumptions largely weigh in favor of affirmance, and so winning in the trial court is statistically the best way to win on appeal. Appellants do enjoy a kind of home field advantage, however. Just as in baseball, where the home team always gets to bat last, the appellant always gets the last (written) word in the form of the reply brief.

In California and federal appellate courts of appeal, reply briefs are nominally optional. As a practical matter, all this means (or at least all it should mean) is that an appeal will not be dismissed for the appellant's failure to file a reply. Because from the perspective of good advocacy, there is really nothing optional about a reply brief. Shifting metaphors, the opening and responding briefs set the terms of engagement; they lay out the field, position the troops, and identify each side's resources. Used properly, the reply is where battle is joined. Indeed, this is why some appellate judges/justices and clerks report beginning their review of a case with the reply brief.

So, how can an appellant make use of this singular advantage? Like any brief, clear thinking and analysis and good, persuasive writing are key. But some features of reply briefs are worth particular attention.

First, the reply should reflect the procedural posture of the case. Just as opening and responding briefs should be written to reflect the fact that the case has already been decided by one court rather and should not simply repeat arguments in the way they were presented in the trial court, reply briefs should reflect the fact that arguments have already been laid out by both parties. As discussed below, it is often wise to repeat or summarize points from a prior brief, but it should be done by reference to the more detailed discussion in that prior brief and should not completely reprise the earlier treatment of the issue. Telling the entire story a second time misses the best and most important feature of the reply and is a sure-fire way to lose the court's attention.

Second, the reply should be organized to make best use of that procedural posture. There are several ways to organize a reply brief. Many lawyers suggest following the organization of the opening brief, and that's a good place to start. But there is a danger in that approach that leads some reply briefs to read exactly like opening briefs, and it is critical not to get so locked into a prior structure that the reply loses its ability to present ideas in the way that most effectively rebuts the points raised by the respondent/appellee's brief. To avoid this, a reply should often follow the form of telling the court why the appellant wins, then telling the court why the respondent/appellee loses. In other words, for each major issue, briefly remind the court why the appellant should win based on arguments in the opening, describe and characterize the respondent/appellee's arguments, and then explain why each of those arguments are wrong.

Third, the reply should take the opportunity to frame the material disputes. One of the benefits of the "Why I Win, Why They Lose" structure is it allows the appellant to lay out in point-counterpoint fashion the disputes at the heart of the case. As noted, the reply comes on the heels of the opening and responding briefs laying out all the factual and legal issues. See, e.g., Jay v. Mahaffey, 218 Cal. App. 4th 1522, 1542 (2013) (striking portions of reply that raised arguments omitted from opening brief). Thus, the reply is the appellant's opportunity to identify where the real disputes lie and frame those disputes for favorable resolution. Done properly, this allows the reply to become the court's first point of reference when a question needs answering and allows appellant's counsel a modicum of influence over the way the court understands the respondent/appellee's arguments. Framing the issues also allows the appellant to jettison distractions. If a responding brief raises issues that are either irrelevant or readily conceded, the reply should say so as simply and briefly as possible. At the risk of stating the obvious, however, this must always be done honestly. Mischaracterizing or eliding an opponent's arguments, using strawman arguments, etc., will invariably reduce an appellant's credibility with the court.

Finally, in framing the material issues on reply, the appellant should ensure that the briefs do not "talk past each other." If the respondent/appellee's brief ignores any points from the opening brief, the appellant should say so in your reply. Likewise, the appellant should ensure that the reply does not ignore any substantive points in the respondent/appellee's brief. To impose a little systematic discipline on this process, one practical step an appellant's attorney should undertake is to compare the table of authorities in each, preceding brief. If there is an authority appellant cited in the opening brief that is not mentioned in the responding brief, it may indicate a missed point worth highlighting. Likewise, if there is an authority cited in the respondent/appellee's brief that is not mentioned in the reply, the appellant should double-check that there is a good reason for ignoring that authority. And, it is a rare authority indeed that is so far beyond dispute that it requires no discussion at all. Another approach some attorneys take is physically cross out each point in a copy of their opponent's brief as they respond to it in their reply.

The reply brief is an appellant's home-field advantage. Rather than walk out of the park in the bottom of the 9th, an appellant should step up to the plate and swing for the fences. 