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December 9, 2020
The Reply Brief: Overlooked and Invaluable

By Logan Carducci

Many appellant’s attorneys believe that the lion’s share of the work is done once they file their opening brief. After spending hours researching the issues, pouring over the trial court transcript, and drafting the brief itself, the euphoria of sending the brief off to the printer is akin to crossing the finish line at an 800-meter race. What these attorneys often forget is that they still have one more crucial lap to go:  the reply brief. The failure to file a reply brief, or to take advantage of its significance, is a critical mistake that can doom an appeal.

A common misconception among inexperienced appellate attorneys is that, when drafting a reply brief, they are limited to “replying” to any novel arguments or authority in the appellee’s brief. In fact, many lawyers frequently question the need to file a reply brief at all given that the crux of their argument is already laid out in their lengthy appellant brief. When they do file a reply brief, it is often a myriad of defensive jabs at the appellee with no mention of the appellant’s own argument or authority.

When used effectively, the reply brief becomes a crucial component of an appellant’s argument. It is one final chance to put forth a concise statement of the issues and convince the Court that it should reverse the lower court decision. Notably, several appellate judges and justices have counseled young lawyers to place particular emphasis on the reply brief because that is where the Court will see the strengths and weaknesses of an appellant’s position, including where the parties disagree and where the Court will need to step in to resolve the dispute. Some jurists even prefer to read the reply brief first when preparing for oral argument or to write a decision.

Because the reply brief could be the Court’s first and most important glimpse into the issues on appeal, attorneys should resist the urge to “phone it in” at this final stage of briefing. Instead, they should cross the finish line with the same energy and enthusiasm as they put into their appellant brief.

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Logan A. Carducci
Appellate Attorneys