To Reply, Or Not to Reply
Mike McKee at the Recorder wrote an interesting article yesterday about the reply brief on appeal. Apparently, it is a controversial document, with some judges bemoaning another fifteen pages reiterating appellant's arguments and others claiming that it is the first document they read.
The article talks briefly about Justice Scalia's thoughts, offered in response to questions on his recent book tour. At the seminar in D.C. last week with he and legal writing guru Bryan Garner, Justice Scalia spoke at some length about the danger of not anticipating judges who are "retro-readers" -- who read the briefs in the opposite order in which they are filed. As the Recorder article confirms, many justices and judges work from back to front when reading briefs, believing that it is not until the reply brief that the "real" issues and controversies between the parties are sufficiently pared down to warrant consideration.
In my humble opinion, the question of whether or not to file a reply brief (as opposed to its content) is really a non-issue. We are advocates for our client, and although there are certainly times when less is more, I do not believe that letting your opponent’s analysis of your argument sit as the last word is ever good advocacy. As Justice Stein commented, the lack of a reply brief, “gives you a clue it's not a strong case."
For me – argument over.
