How to write great reply briefs

Reply briefs are essential in motion and appellate practice.

Feb 28, 2024

Reply briefs1 provide an opportunity to respond in writing to the arguments made by the attorney opposing your motion or appeal. They usually represent your last opportunity to persuade a judge to grant your requested belief before a hearing.

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This opportunity is significant because sometimes judges decide to rule “on the papers” and take the hearing off the schedule, removing any opportunity for oral argument. Additionally, judges who form a pre-hearing view of how they are likely to rule are unlikely to change their minds based on anything said at the hearing. One reason for this is the endowment effect. If a judge has thought through a problem and tentatively arrived at a conclusion, they are probably somewhat attached to their initial conclusion, and changing their minds would require them to do more work. This is especially true when the judge prepares a tentative written opinion before the hearing.

Another reason reply briefs matter is that they are invitingly short and focus on the points where the parties disagree; judges and clerks may read reply briefs first, before (or instead of!) reading the opening and opposition briefs. Though there’s no way to know how common that approach is, I can anecdotally share that I always read reply briefs first when clerking for the Hon. David M. Ebel on the United States Court of Appeals for the Tenth Circuit. For judges and clerks who follow this approach, reply briefs are (counterintuitively) sometimes where the litigants make their first impression on those considering whether to grant the requested relief.

Keep reading for a few tips on how to write compelling reply briefs.

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Be strategic and targeted when considering what to discuss in a reply brief. Err on the side of concision and simplicity.

Many fundamental guidelines for writing strong briefs (see my book for these) apply even more strongly to reply briefs. Reply briefs have shorter page limits, so they should be especially concise, closely targeted to the reader’s needs, and focused on a few essential points.

Don’t play whack-a-mole, responding to every argument made or dart thrown in the opposition brief. Instead, consider all the opponent’s arguments and ask where the opponent may have landed a decisive blow. In other words, for each argument made in the opposition brief, consider how likely it is that the judge might adopt that argument in deciding to deny your motion or reject your appeal.

Keep playing offense by organizing reply briefs around your arguments rather than your opponent’s.

When deciding how to organize a reply brief, consider both the affirmative arguments you want to bolster and the opponent’s points you want to rebut. Although the core purpose of a reply brief is rebuttal, that doesn’t require writing the brief in a reactive way, implicitly adopting the opponent’s legal framework, or fighting battles on the opponent’s preferred terrain. Your reply brief should reinforce the opening brief by continuing to give the judge a road map for deciding the appeal or motion in your favor and writing an opinion justifying that decision.

Take victory laps, pointing out key arguments the opponent failed to refute.

Point out what the opposition brief conceded or failed to contest. Consider the example below (a reply brief’s table of contents). The brief first highlights the main arguments that the original motion focused on, then (in sections III(D) through III(F)) highlights how the opponent failed to refute those arguments. Noting what the opposition brief did not argue can show that your original argument remains intact and suggest that it may be unrebuttable.

Concisely rebut your opponent’s arguments while reinforcing your own.

The example below shows how you can (1) point to an opposition brief’s argument, (2) rebut that argument and undermine the authority purportedly backing it, (3) bolster your argument by reminding the court of its central supporting authority, and (4) point out how the opponent has left your affirmative argument intact by failing to adequately respond. Note too the example’s varied sentence structures and how it uses subordinate clauses such as “even though …” and “rather than …” to land blows in passing while maintaining a quick pace:

Don’t include anything that could be characterized as a new argument.

Avoid directly repeating any text from the opening brief; even if you reinforce your earlier points, put a fresh spin on them. At the same time, don’t give the opponent an opening to claim that you’ve sandbagged by holding arguments in reserve for the reply brief. Making new arguments and relying on key cases you didn’t cite earlier are generally disallowed in reply briefs because opponents cannot respond before the hearing. However, bolstering your earlier arguments with additional explanations or illustrative cases is permitted.

My book Elegant Legal Writing provides many more tips for writing strong briefs. (If you’ve already started reading the book, please take a moment to give it a five-star review on Amazon.)

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Ryan McCarl is a founding partner of Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon at bit.ly/elw-book.

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Photo credit: Kelly Sikkema on Unsplash.

As background for law students and nonlawyers, a typical briefing sequence in a pretrial motion or appeal is: (1) Opening brief (on appeal) or brief in support of a motion; (2) opposition brief; (3) reply brief. After the briefing is complete, the court will consider and rule on the appeal or motion. Courts sometimes hear oral argument on the motion as well.

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