How to Respond to a Legal Brief
Annexes should only be informed if strictly necessary. Irregular attachments may result in a pleading not being filed or rejected and returned for correction. The applicant may not raise new issues or repeat the arguments in the opening statement of the reply. Once all pleadings have been filed and the Court of Appeal has had time to review them, the court will contact the parties to ask if they wish to participate in the oral proceedings. All parties who file a pleading accepted by the Court of Appeal have the opportunity to hold a hearing. This is an opportunity for the parties to meet personally with the judges of the Court of Appeal and to explain the arguments in their pleadings. Don`t underestimate the damage that can happen to your credibility and, ultimately, your case if you waste a case or record a quote or engage in sloppy citation checks. As an obvious example, the cases that you relied on in your opening brief may no longer be good legislation. What if I need more time or renewal to submit my response letter? Master the art of writing an effective response letter while increasing your chances of winning in a particular case. If you have a decent record and follow these 10 guidelines when writing your response letter, the court should be prepared to give you what you want when they read your finding. Don`t forget to say exactly what it is. In the case of cross-appeals, the appellant`s and respondent`s response must contain the arguments received in response to the cross-appeal (see Rules 1250.8[d] and 1250.9[f][v]). The cross-appellant may, after receiving the appellant`s response, file a reply limited to the issues raised in the cross-appeal (see rule 1250.9[f][vi]).
In normal appellate proceedings, the Court of Appeal has similar rules regarding the content and order of filing of pleadings (see 22 NYCRR 500.12[d]). Neither the Appeal Division nor the Court of Appeal admits pleadings in an over-reply (see Rule 1250.8[e] and Rule 500.12(g)). Sometimes an ill-advised lawyer throws every conceivable topic and argument into an opening letter and hopes something sticks. That`s bad enough, but don`t make things worse by going back on one of your flimsy arguments in the answer. Some judges, such as W. J. Eugene Davis of the U.S. Court of Appeals for the Fifth Circuit, may interpret this as a signal that your entire case is weak. Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 7 (2001–2002) (Interview with Justice W.
Eugene Davis). Or, as U.S. Supreme Court Justice Ruth Bader Ginsburg warned, because busy justices “work under the pressure of a relentless clock,” a “kitchen sink presentation can confuse and bore the reader more than it illuminates them.” Id., p. 10 (interview with Justice Ruth Bader Ginsburg). The three-judge panel acknowledged that the practitioner`s role in preparing a response letter can be challenging. Brevity is always preferable, and especially in the answer. At the same time, a reply must address the new issues raised in the appellant`s argument, distinguish the appellant`s authorities from the appellant and highlight the appellant`s concessions on critical points. The practitioner must make an effort to do all this without letting emotions tarnish the presentation. This can be especially difficult if the client provides feedback on draft briefings. The client may appreciate “wild” (or at least strong) language, but the real audience is the court, not the client.
Justice Pryor said a good answer will show rather than say. Additionally, Justice Branch gave practical farewell advice to lawyers who want to make sure they don`t let their emotions cause them to lose the last word: ask someone unrelated to the case to read your response letter before submitting it. All submissions must follow the same rules to refer to the appeal protocol: here you will find an overview of each section of the caller`s reply with a description of what it contains. All sections are mandatory. Choose a section to learn more First, a few words about the formal requirements for answers. Rule 1250.8(b) of the Appeals Division National Rules of Practice (22 NYCRR Part 1250) prescribes the form and content of an appellant`s opening memorandum. Rule 1250.8(d) states: “Any communication in response by the appellant or cross-reaching appellant shall comply without repetition with the requirements of paragraph (b).” Theoretically, this would include an explanation of the issues associated with the court`s response, a statement of the nature of the case and the relevant facts, and the reasoning divided into points by different headings (see 22 NYCRR 1250.8[b]). In practice, the preparation of the reply is much more flexible than that of the applicant. The usual format consists only of answer points, without redundant preliminary remarks, questions asked or otherwise.
There are rules about the length of an information session. Each document must contain a certificate of compliance attesting that it meets the maximum length authorized by the court. The panel also addressed a question that hourly appellate lawyers might consider heresy: Is a response letter still necessary? In answering this question, Pryor J. noted that in cases where the appellant`s brief is truly incomprehensible, an answer can do more harm than good. The last thing the complainant wants to do is clarify his or her case in court. Similarly, Lockemy J. noted that a response may not be necessary if the appellant`s argument merely addresses the appellant`s arguments in a manner that was already expected (and addressed) in the appellant`s opening statement. Presenting a response in such a case would risk violating the maxim “reply, do not repeat”. Justice Branch noted that plaintiffs face an uphill battle, which is why the appeal rules give the plaintiff the final say. In cases where the appellant does not need the last word, he or she should think twice before filing a written submission that only warms up what has already been said. Don`t be afraid to briefly add a little flavor to your answer.
If adding a touch of personal taste to your case is a must, as is the case for many lawyers and clients, then the response letter is a perfect vehicle for doing so. The opening mission is the time to gain credibility with the Court through rock-solid argumentation and careful analysis. Make no mistake, the response letter must still present a clear analysis of the opposing lawyer`s arguments. But if your credibility is already established, you can use your response letter as an opportunity to inject a powerful phrase, colloquial language, or metaphor in the case that supports your point of view. To get the best value for money, the best place to add this flavor is usually in the introduction or conclusion of the response letter. The applicant may attach a maximum of 10 pages of documents or annexes at the end of the pleading. For the time being, an appellant`s opening statement should create the conditions for the response. In addition to setting out the appellant`s factual and legal arguments, an effective opening brief preemptively addresses the less favourable aspects of the appellant`s case, that is, the most damaging facts and jurisprudence, before the respondent does so. This serves two purposes: it reduces the potential impact of the respondent`s argument by undermining the argument that the appellant`s opening statement omitted “decisive” facts or ignored “determinative” jurisprudence, and it allows the response to focus primarily on the respondent`s concessions and weaknesses, while reinforcing the appellant`s strengths. Once the content and order of the response points are determined, there are some basic considerations to consider when writing the response letter. The following list is provided for information purposes only and is not exhaustive.
This argument is at the heart of the appellant`s reply. The appellant should spend most of his time making a compelling legal argument against the specific legal issues raised in the respondent`s submissions. The cover page of a complainant`s response should contain basic information: once you have determined what you mean in your response, the next question is the order in which you want to say it. If counsel for the respondent is qualified appellate counsel, he has organized the respondent`s submissions by first presenting his strongest arguments, regardless of the order of the points in the appellant`s argument. For this reason, it is usually a mistake to take over the organization of the defendant`s submissions by responding to each of the defendant`s arguments in the order in which they appear. On the contrary, a response should generally follow the same organisational structure as the applicant`s statement in order to refocus the Court on the essential issues. Can I attach attachments or exhibits to my response letter? The appellant should then address specific points of law in the respondent`s submissions. The complainant may choose the points of law he wishes to address. This means that the appellant does not have to respond to all of the respondent`s legal arguments. The complainant should focus on the legal issues related to his or her argument in favour of the appeal. If you need more time to file your complainant`s reply, you can agree with the other parties – or “agree” to extend the deadline to a maximum of 60 days.