Sometimes a Reply Brief Should Explore a New Path

Several times over the past couple of years, I agreed to join an appellate team in a case to help finish the reply brief and make the argument. Its not the optimal way to take on an appeal. Limited time, even when an extension is available and granted, may prevent mastering a complex record. The opening brief might pursue a theory or theories of the case that you find weak or contrary to precedent – and the responding brief may have exploited those flaws.

So why take on a potentially sinking ship? Perhaps you believe that the party whose team you have joined ought to prevail, or that you may help avoid setting a bad precedent. You may even have a theory of the case that you believe capable of prevailing that has gone unmentioned.

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.

Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary.[1] Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.”[2] The Court thus claimed a great deal of unfettered discretion.

Counsel in the position of joining the team at the reply stage should provide the court with a basis to exercise that discretion by finding a way to shoehorn the argument into the reply. Often, I have found, the reply brief makes a point that provides an ideal jumping off point for the new legal theory. It may be the citation of a case that supports the theory, an opponent’s argument that opens the door to the theory as a response, or the responsive brief’s claim that the opening brief ignored a point that the trial court made. More often than not, when I have used that tactic, the appellate court has accepted it and found it dispositive. Even if you are not an eleventh-hour addition to a case, read the responsive brief for opportunities to explore a new theme that might beat the path to victory.

[1] United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc) (citations omitted), cert. denied, 143 S. Ct. 95 (2022).

[2] Id.