The Journal of Appellate Practice and Process

Volume 19 Issue 2 Article 6

2018

The Art of the Effective Reply

Peter M. Mansfield

Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess

Part of the Legal Profession Commons, and the Legal Writing and Research Commons

Recommended Citation Peter M. Mansfield, The Art of the Effective Reply, 19 J. APP. PRAC. & PROCESS 261 (2018). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol19/iss2/6

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 41315-aap_19-2 Sheet No. 56 Side A 05/06/2019 10:22:20 see also see (Nov. 20, 2016, 11:30 PM), Vol. 19, No. 2 (Fall 2018) 2018) 2 (Fall No. 19, Vol. COM . PRACTICE NOTE PRACTICE ROCESS IMES Drafting an effective an replyDrafting AND PROCESS AND PROCESS P 2 , LAT THE JOURNAL OF OF JOURNAL THE (posted June 10, 2014), https://www.youtube.com/ Kanye West Ends Sacramento Show After ThreeSongs RACTICE AND AND RACTICE UBE P T ) ) 4/23/2019 5:44 PM (NBC television broadcast Jan. 30, 1997)(featuring OU ELETE , Y APPELLATE PRACTICE PRACTICE APPELLATE D OT PPELLATE N A O (D Or, consider the more recent pop-cultural 1 DIT DIT , Tre’vell Anderson, E by his inability to deliver a witty comebacka witty to deliver to a snarky his inability by XEC E OURNAL OF OF OURNAL J A well-crafted reply can be devastatingly effective. Witness See, e.g. See, Seinfeld: The Comeback HE T 2. 1. ANSFIELD anda Tirade Against JayBeyoncé Z and https://www.latimes.com/entertainment/music/la-et-ms-kanye-sacramento-20161120-html story.html (reporting that West finished his show “with a mic drop after performing only three songs and going on a rantabout Beyoncé and Jay Z”). watch?v=LOetkFopHK0 (highlighting Costanza’s parts of the episode). Costanza’s struggle to come up with and deliver what he thinks isa perfect retort); the plight of George Costanza, tormented in an Costanza,episode of of George tormented in the plight Seinfeld co-worker. phenomenon of droppingthe mic, which emphatically punctuates a performanceleast the mind of so brilliant, at in the thatspeaker, no one dare follow. the in Office Attorney’s U.S. the for Division Civil the of is Chief M. Mansfield *Peter Assistant as First served and previously Orleans) (New Louisiana of District Eastern United States Attorney in that office. He has served as lead counsel in a variety of matters in federal districtcourt and the United States Court of Appeals forthe Fifth Circuit. This articlereflects the personal views of the author and does not constitute official-capacity guidance from the United States Department of Justice. THE ART OF THE EFFECTIVE REPLY REPLY EFFECTIVE OF THE ART THE Peter M. Mansfield* M George and the Jerk Store Jerk the and George 41315-aap_19-2 Sheet No. 56 Side A 05/06/2019 10:22:20 A 05/06/2019 56 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 56 Side B 05/06/2019 10:22:20 .& RAL RAL O RAC ROCESS stingy stingy P .P 4 The Pitfalls Pitfalls The PP A RIEFS AND B The Future of Oral of Oral Future The http://raymondpward http://raymondpward , 13 J. , Jason Vail, ETTER ETTER RACTICE AND e.g. P :B , 40, 40 (Summer 2005) (noting See The Decline of Oral Argument in in Argument Oral of Decline The available at available PPEAL A Jay Tidmarsh, Tidmarsh, Jay PPELLATE cf. concerned clients co- and A 5 ERTWORTHY C INNING ON 213, 213–14 (2000)(recognizing that“[m]ost ) ) 4/23/2019 5:44 PM ,W OURNAL OF OURNAL ROCESS ELETE No Reply? J D LDISERT HE HE OT Why knowingly forfeit the final word to forfeit the final word to knowingly Why . L.J. 475, 479 & n.18 (2016) (addressing decline of oral .&P N 7 HI O J. A (D RAC . appellant’s oppose to 30 days of a deadline (setting P. 31(a) And, if your case is ultimately set argument, for ultimately is case And, if your . P. 32(a)(7)(A)–(B) (limiting reply briefs to half of the pages and . and pages the of half to briefs reply (limiting 32(a)(7)(A)–(B) P. 8 PP it is highly reply will belikely that a written the it is highly .P PP 6 .U.C ACRO ACRO PP M OY UGGERO DIT .R.A , Thomas, D. Hird, .R.A , R. David Cleveland & Steven Wisotsky, E ED 254 (NITA rev. ed. 1996))). ed. rev. (NITA 254 ED e.g. XEC , 2 J. A , 2 , 48 L , 48 E F , F 119, 120 (2012) (referring to a “drastic reduction in the frequency of oral oral of frequency the in reduction a “drastic to (referring (2012) 120 119, however, is one however, of most the difficult tasks in appellate 3 Second, some judges haveSecond, some judges expressed a preference for retro- Rules of courtRules of seldom So, mandate replies. whether of frequency on the declining based oral argumentFirst, in .See .See .See .See, e.g. .See, 4 6 5 3. principles general some advocacy, written towards is geared article this While 7 8. shared. isn’t universally view this disclosure, full In ANSFIELD RGUMENT ROCESS final word the court considers before reaching its conclusion and its opinion. writing opponent? your an effective is reply a valuable in aid identifyingand therefining as most important issues and arguments construct an outlineyou oral argument.for briefs,reading that is, with the reply,starting then working backwards to the opposition, and finishing the opening with word-count permissible forprincipal briefs). outlined in it also pertain to crafting effective rebuttal oral argument. oral rebuttal effective crafting to pertain it also in outlined brief, page or word-count limitations, that “the reply is typically the last document read before a judicial decision is made” and and is made” decision a judicial before read document last the typically is reply “the that difference”), all the can make reply “a persuasive that appellate judges dislike the last word syndrome, especially in the form of reply briefs,”that this“dislike also springs from the fact that most replies simply should not have been filed reply as qualif[y] “genuinely filed briefs reply a few only that and place,” first the in R (citing briefs” P A 262 T 262 practice. Replying counsel often face tight deadlines, M argument” in the federal courts of appeals); appeals); of courts federal the in argument” Argument argument in trial courts). trial in argument the Federal Courts of Appeals:A Modest Proposal for Reform opening brief, but just 21 days to reply to appellee’sopposition brief). counsel, and opposition briefs as imposing as they deflating. imposing briefs as and opposition counsel, are thesecogent of a lack the factors perhaps, or, by motivated to elect to, some may thereply opposition argument to forego a option of filing is areply. This, however, mistake—one that case.could cost your Several support you reasons a strong of presumption in favor a reply in every contested appeal. federal courts, .typepad.com/files/hird.pdf. of Replies 41315-aap_19-2 Sheet No. 56 Side B 05/06/2019 10:22:20 B 05/06/2019 56 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 57 Side A 05/06/2019 10:22:20 8, AR .B T see also available at available ERTWORTHY ERTWORTHY , C , 82 N.Y., 82 S Crafting an Influential How to Write an Effective 11 1, 1 (Aug. 2012), 409–13 (2d ed. 2004) (explaining and ://www.americanbar.org/groups/young_ RIEF B Damon Thayer, SSUES SSUES I INNING ) ) 4/23/2019 5:44 PM see also see W (2012), (2012), https ELETE PPELLATE HE N ’ D ,T SS OT , A Or Forever HoldYour Peace: Reply Briefs http://raymondpward.typepad.com/files/killion.pdf; http://raymondpward.typepad.com/files/killion.pdf; A N O 263 (D ARNER AR Having the Last Word: The Appellate Reply Brief Reply Appellate The Word: Last the Having EPLY ACRO ACRO Garner’s sage is equally sage applicableadvice Garner’s on the A. G .B R M 10 M available at available DIT E RYAN RYAN , A note 7,at(opining 40 that“the only time a reply should not be written is when XEC B , Gerald Lebovits, Lebovits, , Gerald E Under this paradigm, the failure to file a reply forfeits not not forfeits file a reply to paradigm, this the failure Under 9 FFECTIVE FFECTIVE J. 64, 64 & n.12 (June 2010); 2010); (June n.12 & J. 64, 64 Fourth and Fourth finally, counsel be should always on guard Assuming that Assuming are you now thoroughly convinced of the Third, a reply is necessary to reply Third, a complete the briefing volley E.g. supra E .See N ’ 11. Killion, J. Paul 9. 10 HE HE ANSFIELD SS macro level consideringmacro of when the entirety a case’s adversarial back-and-forth briefing in the context of dialectic resolution. against false confidence absent a in their likelihood of success how weaknoted: “[N]o As one appellate advocatereply. matter consider the respondent’syou brief, there is no assurance the with assessment.” court will agree your and Effective Reply Brief Reply Effective and lawyers/publications/tyl/topics/writing/how_write_effective_reply_brief/ (pointing out that that out (pointing lawyers/publications/tyl/topics/writing/how_write_effective_reply_brief/ clerks law and judges of a number that is process judicial the fact about little-known “[a] Kraus, C. brief”); Richard any other reading before briefs reply read need to file a reply, there are a few tried-and-true principles to the through writing process. bright-line One guide you evidently violated prohibition is obvious, yet to bearenough not introduce new issues in repeating—do that arereply your brief. illustrating dialectical structure). dialectical illustrating Reply Brief A T counsel worse, deprives word, but, even the final of the first opportunityinvaluable the issues to identify define theand parameters of the appeal their clients’to benefit. consists which generally method, in the dialectic of a thesis brief), antithesis(opening (opposition), and synthesis/conclusion recommends Garner Bryan guru Legal-writing (reply). the dialectic employing onparadigm a micro-level, such as in a stand-alone piece ofor legal writing, in even the of adiscussion issue. single M victory or defeat is so certain a reply could not possibly make a difference,” but cautioning that the author “thought more than once” that he was “on one side of that equation when in fact[he] was on the other”). 8 (Fall1998), Hird, https://www.fosterswift.com/media/publication/381_Crafting-an-Influential-and-Effective- Reply-Brief.pdf(referring to “[a]necdotal reports” indicating that“some judges and clerks and critical most the distilled have will that appellants first, assuming briefs reply read then”). by arguments compelling 41315-aap_19-2 Sheet No. 57 Side A 05/06/2019 10:22:20 A 05/06/2019 57 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 57 Side B 05/06/2019 10:22:20 : RT OF OF RT PPEAL A in an in an A ROCESS P 13 HE ognizing that note 9, at 58; 58; 9, at note note 9, at 58. 9, at 58. note :T Avoid this Avoid this 14 ASE supra INNING ON note 10,337–40; at supra C ,W itted)). itted)). supra OUR RACTICE AND , P Y Moreover, a failed Moreover, failed a 15 Lebovits, Lebovits, LDISERT 18 ARNER See AKING AKING J. A note 6, and, if the court grants oral ,M By way of analogy, think of of way analogy, think of By PPELLATE For instance, For counsel be may A 16 So too should you limit your your limit should you too So supra note 11, at 9; Lebovits, 11, at 9; note Lebovits, This advice isn’t always easy easy always isn’t This advice 12 UGGERO 17 19 ARNER note 9, at 59. supra 254 (NITA rev. ed. 1996)). ed. rev. 254 (NITA ) ) 4/23/2019 5:44 PM A. G supra note 8, at 214. , United States Abdenbi, v. 361 F.3d 1282,1289 (10th OURNAL OF OURNAL note 12, at 34–35; G ELETE J e.g. D RYAN RYAN , supra HE HE OT RGUMENT supra N See A , &B O (D . P. 28(c) (“Unless the court permits, no further briefs may be filed filed be may .briefs further no permits, court the (“Unless 28(c) P. RAL RAL 74 (2008); Killion, Killion, 74 (2008); PP Cleveland & Wisotsky, O ARNER ACRO ACRO CALIA CALIA note 8, at 215 (“You get no points—credibility or otherwise—for otherwise—for or points—credibility no get (“You 215 at 8, note note 8, at 216 (quoting R S M , United States v. Prince, 868 F.2d 1379, 1386(5th Cir. 1989) (“This Court &G .R.A DIT UDGES E J supra supra note 9, at 3–4; Lebovits, Lebovits, 3–4; at 9, note note 9,3; at Vail, ED e.g. United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991) (rec 1991) Cir. (3d 1375 1368, 951 F.2d Riggi, v. States United XEC F , RIEFS AND AND RIEFS E NTONIN CALIA CALIA B see generally supra supra A second bright-line prohibition is universally advised,A second bright-line prohibition but is universally .See .See .See .See 14 19. S 12. A 15 16. Vail, 13. Or, relatedly, counsel savemay arguments from the reply in the hopes of springing 18. Vail, 17 ANSFIELD ETTER ERSUADING Cir. 2004) (pointing out that circuit precedent “holds that issues may not be raised for the omitted)). (citation argument” at oral time first argument, the panel is likely to react with displeasure to issues or arguments raised for the the for raised arguments or issues to displeasure with react to likely is panel the argument, argument. oral in time first an effective reply as a rehabilitating re-direct key of your witness after cross-examination. Trial counsel should not raise newentirely topics in re-direct, but are typically limited to the scope of the cross-examination. This is alsobad a idea since the odds are against oralargument in most federal appellate courts, Kraus, not always adhered to—don’t respond in kind to personal to personal to—don’t adhered in kind respond not always counsel. opposing attacks from missing from from opening brief.missing your effort to sandbag an appellee presumptively prohibited from a sur-reply or supplementalfiling brief. opposition not only temptation a as of professionalismmatter and common courtesy, but also because most courts to consider refuse new the first time in reply. for issues raised cost new will likely attempt to introduce material in a reply you with valuable credibility the court. P (citation brief.” reply appellate an in time first the for raised claim a new consider not will omitted)). 264 T 264 M B [after the reply].”). them upon unsuspecting opponents at oralargument. to follow in the heat of a briefing battle, especially since lawyers reply to the scope of oppositionreply an brief. tempted to save certain tempted for or arguments issues a reply Kraus, “[t]he tradition in the federal courts has been to limit the scope of redirect examination to to examination redirect of scope the limit to been has courts federal the in tradition “[t]he the subject matter brought out on cross-examination” (citations om reserving issues until the reply.”). the until issues reserving 41315-aap_19-2 Sheet No. 57 Side B 05/06/2019 10:22:20 B 05/06/2019 57 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 58 Side A 05/06/2019 10:22:20 20 note 7, supra available at available The Anatomy of of Anatomy The note 11,at9(“An . 1337,1408 (1997). EV supra righteous or not. or not. righteous 22 .U.L.R M nce to earlierwritings”). , 46 A And to the extent you can’t can’t you And to the extent 23 29, 30 (Summer 2006), 2006), (Summer 29, 30 Nonetheless, the stand-alone reply 25 note 12, at 74. note 12, at34. Dissecting arguments arguments Dissecting “calmly and Lawyer, Know Thyself: A Review of Empirical Research Research of Empirical Review A Thyself: Know Lawyer, ERTWORTHY ) ) 4/30/2019 8:45 PM nsible without any refere nsible without any 21 , C Specifically, unless rules Specifically, of requirecourt supra supra note 12, at 73 (describing the reply as “ideally a wholly self- a wholly as “ideally reply the (describing 73 at 12, note ELETE , , 265 26 D note at 339. 10, note OT supra note 9 (asserting that “[a]n effective reply brief will make your case case your make will brief reply effective “[a]n that 9 (asserting note N EPLY , O ARNER ARNER R supra 1(D , , Susan Daicoff, supra &G &G ARNER as, admittedly, the stand-alone reply could the stand-alone reply aid retro- as, admittedly, ESEND at 75 (“The court doesn’t want to hear you repeat yourself.”); Hird, R . 24 ARNER CALIA CALIA CALIA CALIA &G FFECTIVE FFECTIVE S See, e.g. See, Id. Replying counsel should also resist the conscious desire, or counsel should theReplying also resist E .Id . 24. Thayer, 22 21. S 25 20. 26. 23. G HE HE ANSFIELD CALIA CALIA effective reply should be able to stand alone as a self-contained document; some repetition repetition some document; as a self-contained alone stand to able be should reply effective is therefore necessary and often helpful to the court.”); Steffen N. Johnson, an Effective Reply Brief contained document, comprehe comprehensible to the courta as stand-alone document”); Killion, on Attorney Attributes BearingProfessionalism on tend to be a naturally aggressive and competitive and aggressive a naturally to be tend group, personal to meet inclined attacks head-on. Measured discretion however, in reply, the is better part ofvalor. Judges “heartily antagonism. dislike” A tit-for-tat response to a personal is, attack at best,unnecessary readerat worst, and ineffective; the seasoned to it “suggest[s] on the weak merits.”that you’re T reading judges and clerks. M at 40 (“Judges understandably are not impressed with an extended rehashing of what has already been presented.”). http://raymondpward.typepad.com/newlegalwriter/files/2006Summer.pdf (asserting that that (asserting http://raymondpward.typepad.com/newlegalwriter/files/2006Summer.pdf “the most effective reply briefsin some sense function as stand-alone documents”); S is an avoidable near occasion of a sin— more serious the same statedin material already regurgitating fully the opening brief. dispassionately” is favoreddispassionately” over indignation, objectively ascertainobjectively the line between often-blurry a necessary correction of the record andunnecessary an response in kind to a to a brief and attack, draft reply the offending personal give your trusted colleague unfamiliar with the case or opposing counsel. The dispassionate reaction of uninvolved counsela is likely harbinger of the court’s own response, so heed the editorial receive in return.advice you tosubconscious urge, draft self-contained, stand-alone Some commentators this with disagree on the subject replies. advice 41315-aap_19-2 Sheet No. 58 Side A 05/06/2019 10:22:20 A 05/06/2019 58 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 58 Side B 05/06/2019 10:22:20 .— ITIG L ROCESS Really Really P 29 . P. 28(c). PP ECTION OF S N .R.A ’ RACTICE AND ED The Reply Brief: Turning Turning Brief: Reply The SS P F A 32 See AR note 10, at 407–08. .B M supra , A PPELLATE A 28 note 8, at 216 (“[K]eep replyyour short. ARNER G supra OURNAL OF OURNAL see also J ) ) 4/30/2019 8:45 PM HE HE then ruthlessly cut unneededruthlessly then words from ELETE 30 D note 11, at 8 (“When it comes to a reply brief, less is more.”); is brief, more.”); less a reply to it comes (“When at 8 11, note (Dec. 16, 2015), http://apps.americanbar.org/litigation/committees/ http://apps.americanbar.org/litigation/committees/ 2015), 16, (Dec. note 10, at 433. at 433. 10, note OT N O supra noteat 7,40 (counseling that“[s]tyle-wise, a reply should be short”); note 8, at 213; 8, at 213; note Scrutinize each argument, supporting point, and Scrutinize point, and each argument, supporting supra there is typically no need for reply briefs to restate a a briefs restate to reply for no need is typically there 1(D note 9, at 59 (“Reply briefs are most effective when they are concise, , 31 27 note 9 (instructing lawyers not to “shy away from filing a short reply brief if RACTICE RACTICE supra supra P ESEND supra R . at212; Sylvia H. Walbolt and Nick A. Brown, ARNER supra With these proscriptions and an overarching desire for and an overarching these proscriptions With Conceptualizing your reply not Conceptualizing reply as your a stand-alone, but as the .Id 31 28. Unless, of course, the existence or absence of subject-matter or appellate 29. Hird, 27. The only requirements for reply briefs found in the Federal Rules of Appellate 32. Vail, 30. G ANSFIELD PPELLATE “Getting the Last Word” into “Getting the Win,” the “Getting into Word” Last the “Getting even sentence in draft then compare reply them theyour against brief “[J]udges can eliminate. opening to find redundancies you theirhave lots to read—but reading is rationed, time they and it on don’t want to waste the unnecessary.” detailed factual backgrounddetailed case, re-urge statement of the or the in the opposition issues or ignored arguments of particulars briefs. the prior summarize eachbrief, or from argument Nor briefreply must a in a typical case include jurisdictional or standards ofstatements review. jurisdiction, or the appropriate standard of review, is a disputed issue on appeal, in which case discussing the topic on reply is unavoidable. Lebovits, Procedure are a table of contents and a table of authorities. direct, punchy, and selective.”); Vail, appellate/articles/fall2015-1215-reply-brief-turning-getting-last-word-into-getting-win.html appellate/articles/fall2015-1215-reply-brief-turning-getting-last-word-into-getting-win.html you that process, writing the of end at the very assume, to is trick editing favorite (“One if even court’srules, the with comply to words of number specific some eliminate must you do not really have to do so. Works every time to makea better final product.”). brevity in mind, use the in techniquesbrevity following to draft an reply. familiarizeeffective First, intimately with the yourself essential counterarguments and supporting sub-points of the to. A word of warning—the are responding opposition brief you otherwise, brief. Get to the point. Quickly. TakeQuickly. page or word limit to the point. your brief. Get and cut it in half, Briefs—especially replies—are not like artillery shells: Size is not proportional to to proportional not is Size shells: artillery like not replies—are Briefs—especially Killion, impact.”); Thayer, confident are you that court the tells brief reply short “[a] because done,” job the get it will position”). your about 266 T 266 M A your draft. your final piece of an ongoingfinal piece of an dialectic necessarily contextualized precedingand informed by briefs, will aid in accomplishing you all commentatorsa rule of reply agree upon: Be brief. 41315-aap_19-2 Sheet No. 58 Side B 05/06/2019 10:22:20 B 05/06/2019 58 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 59 Side A 05/06/2019 10:22:20 note 11,at9 (suggesting a method of supra illion, illion, ) ) 4/23/2019 5:44 PM note 24, at 29–30 (“The best introductions . . . will note 24,. at 29–30 (“The best. introductions itions.”). itions.”). ELETE supra D OT N note 11, at 8 (“To be effective, a reply must be selective. . . . It It . . . selective. be must a reply effective, be 8 (“To 11, at note O 267 note 9,(“A2 at brief introduction allows the appellant to (D supra note 9,at(“In2 almost all cases, acceding to an appellee’s EPLY supra ACRO ACRO R M Indeed, sometimes it’s difficult to find cogent find cogent to sometimes it’s difficult Indeed, supra DIT 33 E Avoid this. If the introduction reply runs at or to Avoid this. If your XEC Kraus, 34 E FFECTIVE FFECTIVE In that regard, the primary tasks of replying counselto tasks of replying are the primary that regard, In After stepping back and re-readre-grouping, the opposition E .See 33. Kraus, 34 HE HE ANSFIELD organizing the introduction in the reply: “Briefly recap the main points of appellant’s appellant’s of points main the recap “Briefly reply: in the introduction the organizing argument, then summarize the main points of respondent’s answer,and finally preview appellant’s rebuttal”); Johnson, alsoinclude a short response to your opposing counsel’sstrongest arguments and point out if. And your case is . where they. have failed to answer your winning arguments. complicated and it takes two or threepages to do that, do not worry—these are the most important pages of brief.”). your organization in poorly written opposition work. written organization in poorly order to restore dispelchaos, confusion, and refocus the court on it in should resolve but how it it must resolve, what not only favor. An introductory sentence shouldyour or short paragraph premise. Some re-establish indispensable theme and your lengthy fairly seem to envision a commentators on the topic bit of substantive a good that carries to the reply introduction freight. concentrate on the key legal issues and develop a statement of the critical arguments that that arguments critical the of a statement develop and issues legal key the on concentrate counters the appellee’s response.”); K reorganization is a mistake and forfeits the appellant’sadvantage offraming the Killion, arguments.”); that points those brief—only answer the in raised point every rebut to necessary is not appear to undermine appellant’spos initial read-throughinitial is often deflating. has opponent Your retained an appellate whose advocacyperhaps specialist and writing are marked improvements over the district-court briefing. maybe Or, yourcase for affirmance makes a opponent on appeal based on several unanticipated alternative bases appearing record. in the worse Or, yet, your citesopponent authority failed to identifyyou or exploits an unforeseen flaw in argument.your times,brief several dissect it with co-counsel or consulting begin outline the colleagues, importantly, content, and, most the counterargumentsgrouping into issue-bundlesof law or fact. bound or even sequencing rigidly to the opposition’s Don’t feel of theits identification issues when bundling topics and drafting the reply. over a page, or paragraphcries out clarifying for breaks, it is T M 41315-aap_19-2 Sheet No. 59 Side A 05/06/2019 10:22:20 A 05/06/2019 59 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 59 Side B 05/06/2019 10:22:20 .P. PP ROCESS P .R.A ED . F cf that you want want that you Use the exact 42 41 RACTICE AND f should close by telling the the should closef telling by P 40 But do consider the do consider the But 39 PPELLATE A note 9, at 2–3. supra nting out that “a reply brienting out that“a reply OURNAL OF OURNAL J ) ) 4/30/2019 8:45 PM In doing so, you not only remind the court remind not only the court so, doing you In HE HE . P. 28(a)(8)(A) (requiring an argument with “contentions and 38 37 note 10, at 407 (“[R]eject the idea that you should first tell the the first tell should that you idea the (“[R]eject 407 at 10, note PP ELETE D note 11,at 10 (explaining that“the conclusion in every reply OT supra N note 11,at9–10 (advocating for dialecticapproach reply in briefing). note 11, at 8; Kraus, .R.A note 9, at 4 (poi , note 9,at 2. note 9, at 2. note O supra ED 1(D , F supra supra supra supra supra 35 ARNER Consider adding Consider a short reference to your e.g. ESEND 36 G , R Kraus, Once those tasks those tasks Once areissue- an complete, to leave ought this In conclusion, don’t forget to conclude. conclusion, don’t forget In Next, quickly identify in your reply, but don’t reargue, the reargue, but don’t reply, in identify your Next, quickly . .See .See 39 35 40. Killion, 41. Kraus, 36. Kraus, 38. Killion, 37 ANSFIELD bundle of legal matters that will likely occupy the bulk of your briefing. restatements Shun lengthy of reply opponent’s your precious real estate sense in donating no argument; from your adversary. to your slim reply deliberately occasional, well-placed brief as quotation from the opposition dialectic for Often, part of argument instance, an in reply. your ofopponent’s phrasing argumentan is superficially attractive confines planted within of its own brief, but when the cozy only An effective in reply. deconstructed systematically when withers of the boldlyantithesis, re-frames confronts the language reply a of reasoning, strength through and attacks it, then compels, consistent with the original thesis. resolution language from the language lawapplicable federal or rule probablytoo long. Savelifting heavy the for the body of your argument. 268 T 268 opening brief that the appellee to issues from has failed your contest. or abandonment law on forfeiture, jurisdiction’s for waiver, briefing.inadequate M reader what you’re going to say, then say it, then remind the reader of what you just said.”). said.”). just you what of reader the remind it, then say then say, to going you’re what reader court what the appellant wants” because “that is the most important question in any any in question important most the is “that because wants” appellant the what court Killion, appeal”); should contain a clearstatement of the exact relief the appellant seeks”); the reasons for them, with citations to the authorities and parts of the record”). the of parts and authorities the to citations with them, for reasons the 28(a)(9) (requiring appellant’sbrief to contain“a short conclusion stating the precise relief sought”). to address only adequatelyto address briefed but opposition arguments, also provide a convenient statement of toauthority cut and paste anycorrect Then, with equal brevity, into the opinion. or of the of fact misrepresentations in appellate recordappearing the opposition brief. 41315-aap_19-2 Sheet No. 59 Side B 05/06/2019 10:22:20 B 05/06/2019 59 Side Sheet No. 41315-aap_19-2 41315-aap_19-2 Sheet No. 60 Side A 05/06/2019 10:22:20 , 2 Ultimately, drafting Ultimately, 43 Preparing Your Appeal to the Fifth Circuit Fifth the to Appeal Your Preparing ) ) 4/23/2019 5:44 PM ELETE D OT N O 269 (D note 11, at 10 (quoting EPLY ACRO ACRO R M . 431, 433 (1985)(“Tell us exactly what relief think you we should order. supra DIT E PTR XEC 28 U.S.C. § 2106 (providing that “any . . . court. of appellatejurisdiction . may 28 U.S.C.2106§ . (providing that“any .R E IR FFECTIVE FFECTIVE See C E 42. 43. Killion, HE HE ANSFIELD IFTH IFTH to see into see the court’s or mandate. opinion art that gives is an writing, reply,an effective as withlegal all license to experimentcounsel their own and develop with preferencesa mere above and style. guidance Consider the point in launching own questyour a for drop-the-mic-worthy better Costanza. on reply.last word fare than May you George It is helpful if, in summary, your you frame the court’s mandate would as like you to have it.”)). T M affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as be may just under the circumstances”). F 41315-aap_19-2 Sheet No. 60 Side A 05/06/2019 10:22:20 A 05/06/2019 60 Side Sheet No. 41315-aap_19-2