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California Supreme Court Justice Kathryn Mickle Werdegar finds them “very useful.” Fourth District Court of Appeal Justice Barton Gaut thinks they’re mostly a waste of paper. And several other appellate justices believe they’d be a lot better if lawyers put more effort into them. What’s everyone talking about? Reply briefs. Those often innocuous documents — which give appellants their likely last chance of getting a lower court’s jury verdict or judicial finding overturned — are actually rather controversial. (Who knew?) There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them. After all, the briefs are optional at the San Francisco-based Ninth Circuit U.S. Court of Appeals. So to get to the bottom of this divisive issue, The Recorder recently e-mailed all 103 justices on the California appellate bench, including the seven on the Supreme Court, asking for their thoughts about reply briefs. Twenty-five justices responded, including Werdegar and Chief Justice Ronald George from the Supreme Court. By and large, the responding justices felt that reply briefs — called ARBs in court lingo (for appellant’s reply briefs) — are an integral and indispensable part of the courts’ record. Werdegar said appellants often have to use the reply brief to “confront the true strength” of an opponent’s response brief. “Thus we sometimes see a petitioner in a reply brief abandoning weak arguments,” she said, “or attempting to answer, for the first time, the most difficult arguments against her position.” But then there was Riverside’s Gaut, who said attorneys “could save a lot of time and the cost to their clients by not preparing a reply brief.” He said a respondent’s brief occasionally “requires some minor response, but even that is unusual.” The most common annoyance cited by justices was that too many attorneys commit the sins of either simply regurgitating what they said in an opening brief or attempt to raise new issues for the first time. “A properly drafted reply brief can offer insight into the issues most in contention between the parties,” said Justice James Lambden of San Francisco’s First District. “Regrettably, replies are frequently ill-conceived and simply reargue the opening brief.” Justice Arthur Gilbert, of the Second District’s Ventura branch, made it clear that repetition isn’t welcome. “Perhaps this is done in the hope that what is read last makes the lasting impression,” he said. “These types of reply briefs do make an impression, but an unfavorable one.” Ten other justices complained about getting far too many rehashed reply briefs. And Chief Justice George said he understands why that would be annoying. “If you just repeat the arguments,” he said, “they are worthless.” George, who was so keen on the subject that he called from out of state to talk, said his court often starts working on a case before the reply brief is filed. “Positions are staked out in the opening and response briefs,” he said, “and one would start consideration of the legal issues and modify one’s tentative conclusion [based on] the reply brief.” In other words, the Supreme Court reads them. Reply briefs are limited to 4,200 words in the Supreme Court, but can run up to 14,000 in the lower appeal courts. Appellate specialist Paul Fogel, a partner in Reed Smith’s San Francisco office, said the Judicial Council’s Appellate Advisory Committee recently proposed that the number of words allowed in Supreme Court reply briefs be doubled. Currently, if an attorney wants to exceed 4,200 words in the state’s high court, he or she has to request the justices’ approval. “My experience is that the Supreme Court is very, very liberal at granting requests for more words,” Fogel said. “But one sentiment [among appellate lawyers] is, why should we invite all these requests? Just double the number of words.” U.S. Supreme Court Justice Antonin Scalia heightened reply briefs’ profile a couple of months ago when he said that while researching his new book, “Making Your Case: The Art of Persuading Judges,” he discovered that “a lot of judges” start with the reply brief. They then read the respondent’s brief and finally the appellant’s opening brief in a practice called “retro-reading.” One self-confessed reverse reader is Justice William Bedsworth of the Fourth District’s Santa Ana branch. But he said he instead begins with the respondent’s brief, followed by the reply brief and then goes back to the appellant’s opening brief. “This helps narrow the issues for me before I read appellant’s brief,” he said in an e-mail. “[There's] nothing more frustrating than spending a lot of time struggling with something in appellant’s brief, only to find respondent concedes it or attacks it on a completely different basis than the one anticipated by the appellant. “Same goes for reading [the] reply brief,” Bedsworth added. “Appellant may abandon something he spent 20 pages on in opening brief after hearing respondent’s reply, or may have a devastating comeback (or devastating lack of a comeback) to something respondent says.” Fogel said that when he was the chief of staff for former Chief Justice Rose Bird more than 20 years ago, he always started with the reply brief. “The reply brief to me was the most important document in the process,” he said. “It’s the appellant’s last attempt to show why — notwithstanding what the respondent says — the appellant should win.” To Daniel Kolkey, a partner in Gibson, Dunn & Crutcher’s San Francisco office and a former Third District justice, reply briefs are “the mother’s milk of appellate advocacy.” “If written with honest clarity,” he said, “they are not only your best opportunity to convince the court of the bankruptcy of your adversary’s arguments, they may also be your only opportunity — given the limited time available for oral argument.” First District Justice William Stein pointed out that in 10 to 20 percent of cases, appellants don’t file a reply brief. That, he said, could mean the appellant realizes he is wrong or can’t find a way to respond to a strong argument. “Either way,” he said, “it gives you a clue it’s not a strong case.” Bedsworth, of the Fourth District, said that as a former appellate lawyer and a justice for more than a decade, he would definitely advise appellants to file a reply brief. “Why in the world,” he said, “would you ever want to give your opponent the last word before oral argument?”

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