Your Guide to Filing a Reply Brief at the New York State Appellate Courts
As an Appellant or party appealing to the New York State Appellate Division, you have the option to file a Reply Brief and this is usually the final written argument the Court receives. See, e.g, 22 N.Y.C.R.R. §500.12 (Court of Appeals); §600.11(f)(4) (First Department); §670.20(i) (Second Department). Cf., 22 N.Y.C.R.R. §1000.11(g) (Fourth Department). It has been rumored that some Appellate Judges read the Reply Brief first. Appellate Practitioners have varying opinions as to what it means to the court when they decline the option to file a Reply Brief. Some speculate that it may give your opponent the last impression on the mind of the Court, while others believe the court knows some answering briefs are so weak that there is no need to file a Reply Brief.
Reply Briefs are not like opening briefs, in that a reply should only address issues the court may need further clarification on, after reading your opponent’s brief. The clarifications could be in regards to policy considerations, a citation to case law or a statute, as well as the factual matters. No one wants to hear a repeat of what was in an initial brief; your reply should be helpful in advancing your client’s position. See CPLR 5528(c) and 22 N.Y.C.R.R. §600.10(d)(1)(i) (First Department—limit of 35 pages or 7,000 words); §670.10.3(a)(3) (Second Department—7,000 words); §800.8(a) (Third Department—10 printed or 15 typewritten pages); and §1000.4(f)(3) (Fourth Department—35 pages).
Although it should be obvious, it may be worth mentioning that one should not raise any new substantive issues of law for the first time in a Reply Brief. However, there have been instances where the court has allowed new matters of public record to be included in a Reply Brief. Should you be on the receiving end of a Reply Brief that exceeds its scope, you may file a motion to strike the Reply Brief. The court could choose to strike a limited portion of the brief to maintain what is an otherwise acceptable Reply Brief or simply ignore certain points or assertions all together.
Time to file reply briefs is shorter than any other brief, but this is no excuse to skip a thorough analysis of your opponent’s answering brief. Many appellate practitioners try to put themselves in the position of the court when deciphering what arguments and facts are most crucial or vulnerable. It may be helpful to review those facts and arguments with a neutral colleague. Once you have made the determination of what you will include in your Reply Brief, it is important to organize your points by beginning with your strongest arguments instead of responding to your opponents point by point.
REPLY BRIEF WRITING STYLE CHECKLIST
[ ] Address and correct only material misstatements of fact. Avoid correcting every minor point of disagreement or factual inaccuracy.
[ ] Concentrate on key legal issues and focus on rebutting your opponent’s points but try to re-emphasize your main arguments at the same time without repeating anything from your opening brief.
[ ] Avoid every citation and instead address the respondent’s strongest authorities and bring to the court’s attention those cases that are controlling.
[ ] While there are procedures for bringing new case law to the courts attention after argument, you should be continually researching your case and should any persuasive cases decided after the filing of your main brief come up before your Reply Brief is due, then be sure to include them in your reply.
SIDE NOTE ON CROSS-APPEALS: When your opponent(s) cross-appeal, as the Appellant-Respondent, you generally file a combined responsive brief and many Appellate Practitioners address the cross-appeal in the very last section of such a combined brief because the priority should always be with the main appeal. It is important to put on your respondent’s hat when addressing a cross-appeal and begin with assessing the court’s jurisdiction and whether the initiating party is actually “aggrieved” by the order or judgment from which the cross-appeal is being taken. The appellate division allows the cross-appellant to file a reply brief limited to the issues raised on the cross-appeal after receiving your reply brief. See 22 N.Y.C.R.R. §600.11(d)(2) (First Department); §670.8(c)(3) (Second Department); §800.9(e) (Third Department); and §1000.2(f) (Fourth Department); §500.12(d) (Court of Appeals). If you find that a cross-appellant is only appealing to gain the last word on your appeal, a motion to dismiss may be in order.
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