Thursday, December 17, 2009

Self-defeating judiciary tricks

Speaking to the Madison County Bar Association today, Judge Rhesa Barksdale riffed on some points of appellate practice in the 5th Circuit. He was astounded by the number of appellants who don't file reply briefs. (FOR NON-LAWYERS: appellants file initial briefs, appellees file response briefs, and then appellants can file reply briefs; ordinarily no further briefing allowed.)

In the Q&A at the end, someone pointed out to the judge that the court's own online practitioners' guide does not seem to encourage reply briefs:
The rules allow for an appellant to file a reply brief to address arguments raised in the
appellee’s brief, FED. R. APP. P. 28(c); however, just because it is allowed does not mean that every appellant has to file one. If your reply brief merely reiterates what is already in your opening brief, it serves little purpose and only delays consideration of your appeal. Reply briefs should be filed only if necessary to rebut an important argument in the appellee’s brief.
None of that is *wrong*, but the tone does not seem to encourage reply briefs, and some lawyers inexperienced in appellate practice might take the guide to be discouraging them from filing reply briefs unless they have some special reason. Certainly, the guide doesn't make them sound nearly as important as Judge Barksdale thinks they are.

The amusing thing was of course that the good judge was only faintly aware of the existence of said document, and not at all of its contents. I wonder who writes those things? They probably do get circulated to the court, I'd imagine, but judges are busy folks and not all of them really care to read a 60-page document they don't actually *have* to read.


  1. Really bizarre. I live in fear that courts won't read reply briefs...

    I guess I'm very reasurred how important Judge Barksdale thought such briefs, appalled by lawyers who don't file them... I'm thinking, and am sure I've never been appellee in a case where a reply wasn't filed. Ever. I've been counsel on dozens of appeals, and never seen anyone fail to respond.

  2. I've only omitted to file a reply brief once, and that was on an appeal that was "client-driven" -- there was really no answer to the response brief. Reply briefs are the fun ones to write, usually!

    So it was striking that the judge had seen enough cases w/out reply briefs that he thought it worth stressing.