Appellate Adventures, Chapter 17: “How to I Write the Appellants Brief?”

Note: My last column, which criticized the dumbing down of the California bar exam, produced quite a number of emails and phone calls to me from lawyers -- and even a judge. All expressed strong support for my sentiments. I told them something I should have included in my column: Don't tell me. Tell the people that make decisions about the bar exam: the State Bar and the Supreme Court. Apparently, these august institutions hear mostly from people (e.g., law deans) who want to make the bar exam easier to pass. They don't hear much from those who want to protect the public. Tell them! -- MM

Our story so far.

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the appellant's opening brief. [See prior Moskovitz On Appeal columns.]

Flash said, "Professor, I filed my opening brief, and Topspin just filed their respondent's brief. Their brief looks good, and I'm worried about it. Now I get to write a reply brief. Is that important?"

Plato said, "Your reply brief might turn out to be the most important vehicle for influencing an appellate court. You've just seen Topspin's best shot at the arguments you made in your opening brief. Now you can give your best answers to those. Because no 'sur-rebuttal' brief is allowed, Topspin can't respond to your reply brief -- except at oral argument, when it's probably too late to have much effect."

Flash asked, "Do appellate judges think the reply brief is important?"

Plato replied, "They sure do. Some think the reply brief is so important that they read it first. The appellant's opening brief set out the arguments for reversal, and the respondent's brief presented the arguments against reversal. So now 'the issue is joined.' If the judge was impressed by the respondent's brief, she will vote to affirm -- unless the reply brief persuades her otherwise. Plato added, "But many judges call reply briefs 'repeat briefs,' because most do little more than repeat arguments made in appellant's opening brief. Put yourself in their shoes. You've just read the opening brief and the respondent's brief. Why would you then want to spend more of your valuable time reading a rehash of arguments you already read?

"So the reply brief should reply. It should contain your answers to the best arguments in respondent's brief. These answers might briefly interweave key points (especially facts) made in your opening brief, which could help hammer them home."

Flash asked, "How should I structure each section of the reply brief?"

Plato said, "Keep it simple. First, 'At AOB ___, we contended that....' Here, write a very short summary of the argument you made in your opening brief. Next, 'At RB ___, respondent counters with....' Here, write a short summary of the respondent's counterarguments to that argument. Finally, 'Respondent is mistaken, because....' This structure makes it easy for the reader to locate all the pertinent arguments. It also allows you to repeat the essence (but no more) of your AOB argument."

"Should I write another statement of facts?" asked Flash.

Plato said, "No. But if the respondent has misstated any facts or violated the standard of review or any presumptions, point this out in the argument section of your reply brief. It his mistakes are significant, make this a separate section of your argument, and put it first.

Plato explained: "Every statement of facts -- for either party -- must comply with the standard of review that applies to the legal issues raised in the opening brief. Here the appeal is from a summary judgment, so the facts must come from the evidence favorable to Debbie, not from the evidence favorable to Topspin. Respondents often ignore or try to slide around this rule, asserting certain 'facts' and citing as supporting evidence declarations that were favorable to Respondent but were contradicted by the appellant's evidence. When this happens, begin your reply brief with something like: 'Please ignore respondent's statement of 'facts,' because it fails to comply with this Court's standard of review for summary judgments.'"

Flash asked, "Should I deal with all of the cases Topspin cites?"

Plato said, "Not all of them. Reply to Topspin's strong arguments and important cases. If you don't, they might impress the court and cost you the appeal. You can try to respond to them at oral argument, but by then it will probably be too late to affect the outcome. But don't bother trying to distinguish all of Topspin's minor cases. It might be helpful to point out one or two of their more inexcusable mistakes, thereby calling into question their reliability on their better arguments."

Flash said, "Here's what really worries me, professor. What if I just can't think of a good response to one of Topspin's arguments?"

Plato thought about this. "That's a tough question. You pick up your opponent's respondent's brief, see a rebuttal to one of the arguments you made in your opening brief -- but you can't think of a good response! You have three choices: (1) ignore his rebuttal, (2) include the best response you can come up with, even though you know it's weak, or (3) concede the point. #1 is a very bad idea. Strong arguments against you won't go away. #2 isn't much better. So #3 might be the least-bad way to handle it -- so long as conceding the issue won't cost you the appeal. The concession will enhance your credibility with the justices -- who hardly ever sees lawyers concede anything. Sometimes I'll lead off my reply brief with such a concession, to shock the judge into realizing that I'm someone she rarely sees: a reasonable advocate."

"How should I end the reply brief?" asked Flash.

Plato said, "Your conclusion should restate -- very briefly -- your main arguments, so that will be the last thing the judge sees before she puts down the three briefs."

Flash asked, "Any more tips on the reply brief, professor?"

Plato said, "Yes. Think about holding a moot court before you file your reply brief. Bring in a panel of neutral, bright generalists. Have them read -- before the moot court -- the trial court opinion, the appellant's opening brief, the respondent's brief, and your draft reply brief. Their feedback will help you improve the reply brief. The reply brief is your last real chance to persuade the court. Make it count."

"Thanks, Prof. What comes next -- oral argument?"

"Right, Flash. We'll talk about that next time." 