no time
  1. First, a reply brief should not be a condensed version or re-hash of the opening brief. You must be careful and selective and focus on the important points in opposing the respondent's submission – not merely refuting in a line-by-line fashion every argument made in that brief.
  2. The structure of the reply brief is important. It is not uncommon for a respondent's brief to follow the order its author believes presents its strongest point initially, rather than subscribing to the organization presented in your opening brief.  Don't fall prey to adopting the respondent's approach. (Jay O'Keefe, “Tips on Drafting an Effective Reply Brief from Richard Kraus,” De Novo: Virginia Appellate Law Blog, Aug. 26, 2012.)  That will often happen if you persist in trying to refute point-by-point the arguments put forward by the respondent.  We recommend that you stick to the structure that you set out in the appellant's brief.  (Thomas R. Newman and Steven J. Ahmuty Jr., “Reply Briefs: Getting The Last Word Has Its Limits; APPELLATE PRACTICE,” NYLJ, Nov. 2, 2011, at 3, Col. 1; Vol. 246, No. 86.)
  3. It is not necessary to try to distinguish every case that your adversary cites. (Id.) There is nothing more boring and less persuasive than to read page after page of attempts at distinguishing cases the respondent cited.  Select the most important cases that the respondent cited and go after them; look at the respondent's table of cases for multiple citations of the same case – that will be the best clue of all as to what cases you need to reflect on.
  4. Maintain your theme. The theme is especially important in this last read.  It should advance your cause in a simple, direct fashion; it should be woven throughout your reply brief from the preliminary statement until the very end. (Richard C. Kraus, “Crafting An Influential And Effective Reply Brief,” Appellate Issues: Council of Appellate Lawyers, August 2012, ambar.org/ajccal)
  5. Be especially mindful of using short, declarative, punchy sentences – short paragraphs as well. Shorter, more direct writing is more persuasive, and this is the time to be persuasive!  Be careful about using acronyms and abbreviations in the reply brief without setting out what they stand for.  You don't want to make the judges jump back and forth to your initial brief in order to get an understanding.  Others have warned against the use of complicated jargon that can detract from the principal theme as set out in your reply brief.
  6. Seize the opportunity to call attention to respondent's failure to address an issue raised in your opening brief and consider whether such failure may be the basis for a waiver argument. (Damon Thayer, “How to Write An Effective Reply Brief,” ABA Sec. of Lit., Feb. 6, 2012.)
  7. Finally, the reply brief, however short, should be a stand-alone document. (Paul J. Killion, “Having The Last Word: The Appellate Reply Brief,” Certworthy (Fall 1998), at 9.) As we noted at the outset, many appellate judges have the habit of reading a reply brief first.  If that is the case and there is abundant anecdotal information that this is so, the reply brief should state, clearly and succinctly, the factual points and legal arguments that support your position and entitle your client to relief.

    Reflections on Rebuttal

David B. Saxe is a former associate justice of the Appellate Division, First Department, where he served for 19 years before becoming a partner at Morrison Cohen. Y. David Scharf is a senior litigation partner at Morrison Cohen.