It is surprising to me every time, but in my  practice of appellate law, I’ve been asked by lawyers whether it was really necessary to file an Appellant’s Reply Brief. My short answer is, “Only if you want to win.”

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There can be legitimate reasons why an otherwise intelligent lawyer would consider not filing a reply brief. Perhaps his or her workload is too heavy to prepare a reply brief, or perhaps the client is complaining about cost or the case is on a contingency fee and there is a concern about cost efficiency.

Again, the only question to ask is,”Do you really want to win?”

Let’s consider the problems that can arise if an Appellant’s Reply Brief  is not filed. Obviously, without a reply brief you cannot respond to the argument and legal authority presented to the court in the Appellee’s Brief, risking an affirmance based simply on the fact that certain points made therein remain uncontested.  Even if the Appellant’s Brief was so well written that it predicted the arguments the appellee would make and went ahead and addressed them, you have the problem of allowing the appellee to have the last word in the argument, a tremendous strategic advantage. Is that a strategy worth pursuing?

Moreover, just think of the various possible messages the appellate court may believe is being sent by the failure of an appellant to file a reply brief:

  • “I’ve lost interest in the appeal/It isn’t worth my time.”
  • “I don’t expect to win, anyway.”
  • “I’m so sure in a victory that a reply brief isn’t needed.”
  • “The judges don’t really read all those briefs.”
  • “I’ve got nothing more to say.”

Are those the kind of messages you want to send to an appellate court?

So, think again and always file a reply brief, even if it’s just something short. Respond to the Appellee’s Brief, then add your best argument and get in the last word.  It may be just what the appellate court wants to see to make your client a winner.

If you feel you may need help with writing an appellate brief, or just have a question about appellate practice, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link,  www.appealsandbriefs.com.

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