Siskopoulos Law Firm, LLP
|Posted on 4 March, 2015 at 15:40|
Appellate attorneys understand that a good reply brief is a key ingredient to a winning appeal. It gives you the final say in an appellate manner, and should be used wisely. A smart, effective reply brief focuses on three important items. They are:
1. Counter the major arguments of your opponent. The appellate court reads the briefs in chronological order. The court reads the Appellant’s brief, the Respondent’s brief, and finally the Appellant’s reply brief. As a result, your major job as the appellate attorney is to counter the major arguments of the Respondent’s brief. If you fail to counter your opponent’s arguments, the appellate court will naturally conclude that you have no legal basis for opposing the Respondent’s argument and will likely side with your opponent. Consequently, do not rehash your previous brief on reply, but make certain that the opposition’s points are effectively countered. This is the entire point of a reply brief and this will take considerable time and effort. You will need to download and review the cases cited by your opponent. Make sure the cases cited are accurate and current. Also, make sure that your opponent has not taken literary license with the actual holding of the case. If your opponent mistakenly cited irrelevant, dated law or wrongfully states the actual holding of a case, then you must pounce on this opportunity. Whatever you do, do not assume that your opponent cited good law. I remember one case in which my opponent cited pages of cases for his position and the law had been overturned the previous year. Each and every case cited was bad law and this needed to be addressed in the reply brief.
2. Be the reasonable person in the room. A good appellate writer not only picks apart the opponent’s brief by exposing bad or irrelevant case law, but also illuminates why the opposition’s argument makes poor common sense. The law is not intended to create absurd results. The law has a real purpose – it is to remedy unfairness, create standards to be adhered to, and has real life public policy ramifications. Being the reasonable person in the room lets the court know that you are seeking a reasonable, fair and just result. For instance, you represent a party to a contract that has been breached. In the contract, your client rendered services for advertising services at the cost of $10,000 and is seeking payment of the $10,000. The opposing party paid nothing on the contract and counterclaimed for $10,000,000 on the basis that he thought the advertising would bring in $1,000,000 in revenue to this startup company. The opposing party also argues that he should have the right to take over your client’s advertising company and liquidate its assets because his company is going under. Don’t laugh at the example as there are some absurd arguments made by parties in legal cases. Part of your job in the reply brief is to explain to the court that your client is seeking the reasonable result. The contract explicitly states that your client cannot guaranty any results and that the contract price was for the services and costs for the development of the ad campaign which was fully completed and is still being utilized by the opposing party. Clearly, the opposing party’s demands for $10,000,000 in damages and the takeover of your company is beyond unreasonable. Do not assume that the court will automatically dismiss your opponent’s demands as unreasonable. Many novice attorneys appear in court only to find a judge giving credence to an unreasonable argument made by opposing counsel. The sole reason the argument is given credence is that it was never addressed by the novice attorney who just assumed the court would find the argument absurd. Again, do not make assumptions. Show the court that you are being the reasonable person in the room and address why the other side is being unreasonable.
3. Clarify the facts when your opponent tries to skew them in their favor. No seasoned appellate attorney is shocked when they encounter a Respondent’s brief in opposition that twists and manipulates the facts to suit your opponent’s version of events. As an appellate attorney, you need to know the record inside and out to ensure that the court is presented with a correct version of the facts. Although disfavored by the court, all too often attorneys pick apart the facts using only piecemeal portions of evidence in order to skew the facts in their favor. In the reply brief, the appellate attorney must address any misinformation and/or manipulation of the facts. If this is not done, the court may accept this distorted version of events as the truth and base their decision on this skewed factual scenario. Make sure the court is clear on the true and accurate facts so that they can render the appropriate decision.
These are three very important elements to a good reply brief. Of course there are some additional elements to a good reply brief, but you can’t give away all your secrets.
Written by: Alexandra Siskopoulos, Esq.
Telephone: (646) 942-1798
Email: [email protected]
If you have a civil appeal or criminal appeal and would like to speak with an appellate attorney at Siskopoulos Law Firm, LLP, contact us at either (646) 942-1798 or (617) 959-1628.
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Categories: Appellate Attorneys