When Your Opponent’s Brief is a Headscratcher
“I’m glad you have to write the reply brief, not me.” That’s the whole email I received from a prominent appellate advocate who had written an amicus brief supporting my position after he had read opposing counsel’s brief. The difficulty he alluded to was not because the responsive brief was so stellar that I would be hard pressed to formulate winning counterarguments. Instead, it was because the brief was such a head-scratcher. We weren’t just ships passing in the night; we were sailing in different oceans.
When that’s the case, writing a reply brief can be extraordinarily difficult. It is far easier to argue with an opponent who engages you than one that seems to have dropped in from another case altogether. A well-researched and disciplined brief provides a better foil than one that lacks a theme or anything solid to refute.
More typically in a reply brief, one can argue that one set of precedents is more relevant than another, that key cases were misconstrued by your opponent and the court below, or that the issue presented is one of first impression, requiring a new rule. Yet, when the opposing brief states seemingly valid propositions that relate to the case but not to the issue presented, it is tempting to say that the brief fails in every way to address the appellants’ arguments and that those arguments remain valid and should be adopted by the Court. And, there is certainly good reason to make sure the court understands why the arguments made by your opponent lack relevancy.
Yet, underlying the propositions of law proffered by my opponent were assumptions, sometimes unexpressed, that clarify why that brief provides no useful guidance to a court. In my brief, I labeled them fallacies that constituted an act of misdirection. I ran through six separate fallacies that knocked the legs out from under those arguments – at least, to me, they powerfully served that purpose.
For example, my opponent argued that a rule of civil procedure cannot alter substantive law. We know that that is a correct statement of law. Federal law, 28 U.S.C. § 2072(b), denies civil rules from abridging, enlarging, or modifying any substantive right. Having made the valid point, then opposing counsel did little to connect that to the rule at issue. He asked the court to assume that my argument would make the rule substantive. And, my reply demonstrated that following the proper procedure implements the underlying substantive law, rather than changes it.
Similarly, he recited the holding of a case I cited, as though that holding is the sum total of the analysis, because our case did not fit that holding. Yet, my brief suggested that the type of analysis employed in the case supported the analysis appropriate to the issue. While dicta of the type I relied upon does not formulate binding precedent, it was from the U.S. Supreme Court and therefore takes on a heightened character. As the Sixth Circuit put it recently, “Supreme Court dicta is persuasive and cannot be ignored by lower courts for no good reason.” Cunningham v. Shoop, 23 F.4th 636, 659 (6th Cir.), cert. denied, 143 S. Ct. 37 (2022).
It is also tempting to ignore, for good reason, a brief you believe fails to advance your opponent’s case. Prudence, however, requires that you make clear to the court that your version of the case is the one that it should entertain.