Thomas R. Villecco
Thomas R. Villecco ()

According to conventional wisdom, the reply brief represents your only meaningful opportunity to counter the respondent’s arguments. Viewed this way, the practitioner assumes that the court is deeply familiar with the appellant’s theory of the case, and thus expends an inordinate amount of time simply opposing the respondent’s claims. Yet, the assumption that the court reads the briefs in chronological order is no longer a safe one. Indeed, the literature suggests the contrary. In Making Your Case: The Art of Persuading Judges, Bryan Garner and U.S. Supreme Court Justice Antonin Scalia confirmed that many judges and law clerks are so-called “retro readers,” who read the reply briefs first, followed by the respondent’s, and lastly the appellant’s opening brief.1 More locally, Justice David Saxe of the Appellate Division, First Department shared in this publication five years ago that he and a few colleagues would turn to the reply brief first because it was in the reply where the issues on appeal had been narrowed, thereby exposing the real dispute between the parties.2

With state and federal courts chronically short-staffed even in the best of times, the ranks of retro readers will only grow among law clerks and judges alike. Since the reply brief has increasingly become the critical point by which the appellant must make a compelling first impression, advocates must learn how to effectively weave their theme and theory of the case throughout the reply, just as they would in the opening brief. To that end, the following will show how you can use the reply as both an offensive and defensive weapon.

Whether to File a Reply

Initially, though, you should consider whether to file a reply at all. Undoubtedly aware that even an inadequate response to a well-drafted opening brief provides enough material for the court to render an informed decision, no state or federal appellate court in New York requires the appellant to file one. After all, not every case stands on an even plane, and not all lawyers will write with the utmost rigor, precision and clarity. Thus, read the respondent’s brief with an objective eye to determine whether a response is warranted. To illustrate, consider a scenario where the respondent cites little case law, never attempts to distinguish authority, and otherwise fails to confront the vulnerabilities of his case. In this instance, forgo a reply and let the main brief speak for itself, assuming, of course, that the opening is thoroughly researched, well-written and addresses the key points. Otherwise, the reply would merely rehash what you had already argued earlier. Not only will you save your client money, but your silence will signal to the court that the respondent’s position is so weak that it does not even merit a response.

Playing Offense

More often, though, the answering brief will compel a reply. After digesting the respondent’s argument, though, you may feel tempted to rush to the keyboard and begin hammering out a response that picks apart the arguments in sequential order. Avoid this impulse, even though it may be the easiest and most logical way to organize the reply. Otherwise, the final product is a defensive argument that fails to incorporate your appellate theory. You must show not only why the respondent should lose, but also why your client should win.

You need to play offense too, and this starts from the very first paragraph. Restate your theory of the case, while identifying those issues that the respondent has left unchallenged. Ask yourself: Does the respondent challenge your interpretation of the facts, or the applicability of a particular case or statute? If not, say so. For instance:

In his main brief, appellant argued that the prosecutor denied him a fair trial, and thereby committed reversible error, when, during summation, he referred to prior bad acts that the trial court had specifically excluded from evidence. For support, appellant relied on People v. John Doe and People v. Jane Doe, both of which stand for the proposition that even a fleeting reference to a prior bad act can deprive the defendant of a fair trial, and thus constitute reversible error. Tellingly, the People do not challenge this principle, nor do they seriously attempt to distinguish the cases on which appellant relies. Instead, they claim that this court should duck the issue because counsel’s objection below was not specific enough to preserve this prosecutorial misconduct claim for appellate review.

This opening format, which reiterates your theory, and then pivots to answering the respondent’s points, allows you to seize control of the issue. It also makes the brief comprehensible to the retro reader, who should not have to repeatedly turn to the opening brief to understand what you had argued earlier.

As your argument unfolds, avoid letting it devolve into a scattershot attack on the respondent’s assertions. To that end, do not feel constrained to discredit every contention, mischaracterization or inaccuracy. Doing so impresses on the court that all of the respondent’s arguments are of equal merit, and could provide a viable basis for affirmance, when, in actuality, there may only be a handful that genuinely deserve a response. Moreover, it makes the brief tedious and boring. Instead, focus on discrediting the respondent’s strongest arguments. As U.S. Supreme Court Justice Oliver Wendell Holmes put it, “Strike for the jugular and let the rest go.”3

Having narrowed the number of truly relevant issues, you can begin showing the inadequacy of the respondent’s case. But, you should do so in a way that puts your theory at center stage. Thus, read the respondent’s cases to determine whether you can cite them as your own. By using the respondent’s cases as a sword, you can blunt the respondent’s attack of all persuasive force. For instance, don’t just say that “the respondent’s authority fails to support his argument.” Instead, if the facts allow, show how the key facts and reasoning actually support your position. By co-opting the respondent’s strongest authorities, the retro reader will gain the impression that the weight of authority rests on your client’s side.

New Precedent

As many appellate practitioners quickly learn in their earliest days of practice, since neither party can assert facts outside the four corners of the record, the strength or weakness of an appeal does not change over time. But, there is one caveat: new precedent. For example, assume that there are a handful of precedents from the Appellate Division, Second Department that appear dispositive, but lack enough factual detail for you to claim that the precedent is obviously so. If, after filing the main brief, the court renders a more detailed decision on a case involving the exact same facts and issues—a scenario that happened to this author—then you’ve been handed a prime opportunity to claim, with confidence, that the court’s precedents unquestionably warrant a reversal of the order or judgment below. In this circumstance, the “retro reader,” fully aware of the dispositive precedent, will examine the respondent’s brief and wonder why the respondent is fighting over such an obvious issue.

And, the same holds for the converse scenario: new precedent that undercuts your position. Don’t take a “hear no evil” approach. However difficult, address the adverse authority, and explain why it does not dictate an unfavorable result. If nothing else, honestly confronting the adverse authority will burnish your credibility with the court, and the retro reader will at least give you a fighting chance when reviewing the respondent’s papers.

Policy Argument

In closing your reply, put the coup de grace on your opponent’s case with a policy argument. While most cases merely involve the application of settled law to a discrete set of facts, and thus don’t implicate any real policy considerations at all, a tactfully deployed policy argument that highlights the practical effects or injustice of a rule can highlight the folly in the respondent’s theory. For instance, if the respondent is urging the court to apply a rigid, per se rule that effectively strips the lower courts of the discretion to adjudicate an untimely motion for summary judgment, stretch that argument to its logical endpoint.4 Explain how that rule creates an artifice, one that would require courts to turn a blind eye to meritorious motions, even where the opponent had not been prejudiced by the late filing. Further explain how such a rule would force the parties to waste money on a trial, and the court to squander its limited resources on trying a case without any real factual dispute. Coming on the heels of a sharp legal analysis, a concise, cogent policy argument that vividly illustrates the absurdity of the respondent’s position can eliminate any doubt in the court’s mind that your argument aligns with common sense.

In sum, the rise of the retro reader demands that you must put the same intense effort into the reply as you put into the opening. Weave the theme and theory throughout your argument to show why your client should prevail. Whether the court is comprised of retro or forward readers, or a mix of the two, a brief that mixes offense with defense is one more likely to move the ball forward to a winning result.

Thomas R. Villecco is a sole practitioner in Jericho, focusing in criminal and civil appellate litigation and post-conviction motion practice. He can be reached at tvillecco@villeccoappeals.com.

Endnotes:

1. Antonin Scalia and Bryan A. Garner, “Making Your Case: The Art of Persuading Judges,” (2008).

2. Justice David B. Saxe, “How We Operate: An Inside Look at the Appellate Division, First Department,” NYLJ, May 4, 2009.

3. Oliver Wendell Holmes, Speeches 77 (1934).

4. Whether a trial court has the discretion to adjudicate an untimely motion for summary judgment after Brill v. City of New York, 2 N.Y.3d 648 (2004), has recently been the subject of some controversy. See Kershaw v. Hosp. for Special Surgery, 114 A.D.3d 75 (1st Dept. 2013) (holding that a motion court may deny a late cross-motion as untimely, even if the motion has merit and the movant has asserted good cause for the delay in filing).