Drafting a solid reply brief is one of the toughest appellate skills to master.

You want your reply to meet the substance of the appellee’s brief without letting him dictate the argument. You want to strike the right tone and cram a relatively significant amount of law-talking into relatively few pages (at least in state court) and on a tight turnaround (in every court). And for goodness sake, you don’t want to sound snarky.

All of which is easier said than done. Couple that with an unfortunate dearth of good resources on writing reply briefs,and you’ve got the makings of a real problem.

That’s why I was so excited to see Richard Kraus’s article, Crafting an Influential and Effective Reply Brief, in the latest edition of Appellate Issues. The article is worth reading in its entirety–it’s a quick 2-1/2 pages long–but here are a few of his tips:

  1. Reprise. A good reply brief should reprise the themes of the opening brief, using a short introduction to set the stage. That introduction is a handy place to point out arguments that the appellee fails to address, or concessions that he is forced to make.
  2. Only Hit the Highlights. One of the absolute hardest parts of writing a reply brief is knowing what to leave out. Lawyers tend to want to respond to every argument.  Discretion being the better part of valor, and page limitations being what they are, the real art in writing a reply brief is deciding what to ignore. Kraus recommends trying to identify which arguments will interest an appellate judge before starting your reply brief and letting the rest go. I concur; in fact, I try to do this even earlier in the process, when I am writing my opening brief.
  3. Don’t Let the Bad Guy Boss the Play. Kraus counsels against restating the appellee’s argument, then rebutting it. That just emphasizes the Bad Guy’s argument. He suggests starting paragraphs with sentences identifying the error in the appellee’s argument, rather than the argument itself–e.g., “Appellee’s extrinsic evidence cannot overcome the plain language of the contract.” This keeps the appellee’s argument from hogging prime real estate in your reply.

On point 3, Kraus’s sentiment is right but I’m not sure about his advice. It’s important to present the Bad Guy’s argument’s fairly, and it’s equally important to walk the reader through a coherent progression of logic. That might require spending a little time to restate the argument. When I’m reading non-legal persuasive writing, for example, I tend to find most compelling pieces that take the time to present the opposing position in the best possible light, then dismantle it.

That, however, is a minor quibble. Kraus’ article is excellent and well worth your time.