I was recently speaking with a member of the Nebraska Court of Appeals . During the discussion, the judge lamented how surprised he/she is that so few Nebraska attorneys file reply briefs. My jaw practically hit the floor. I simply could not believe attorneys forego a reply brief.
Think about a reply brief the same way you would a rebuttal closing argument. As trial counsel, could you ever imagine yourself listening to the defendant give its closing argument and then, when it’s time for your rebuttal, you stand up and say, “No comment”? I’m sure the very concept sounds preposterous. If anything, you are probably chomping at the bit to explain why the jurors should reject everything they just heard.
When you fail to file a reply brief in an appeal, you are doing the written equivalent of a “No comment” rebuttal argument. Strategically, there are few, if any, circumstances where an appellant should pass on filing a reply brief. Here is why:
1. As a practical matter, when the judge (or clerk) sits down to read through the briefs, the last thing he or she will read are the words of your opponent. As the party alleging error, your client bears the burden of persuasion. Never pass up on the opportunity to have the last word when that is the case.
2. You make the court do the work for you. When you fail to answer your opponent’s arguments, you place the court in the position of having to do it for you. The judges are left to speculate about what your responses might be; and there is no guarantee they will see the issues or points the same way you do.
3. You cannot rely on oral argument to say what you should have said in a reply brief. Cases are routinely submitted to the Court of Appeals without oral argument. If your case is one of them, and you have not filed a reply, you will never get the chance to explain to the court why your opponent’s arguments are incorrect or should not be adopted.
4. Not preparing a reply brief sends the wrong message to the court about your case. Is the case so lacking in merit that it doesn’t warrant the time or effort to prepare a reply brief?
5. Not preparing a reply brief sends the wrong message to the court about you. You may be perceived as being aloof, lazy, or unable to manage your workload.
A reply brief gives you the chance to have the last word and bring the arguments in your initial brief full circle. If you squander that important opportunity, you are doing a disservice to your client and the court.