Why do a reply brief?

South Carolina’s appellate court rules mention reply briefs but don’t define their purpose other than to explain that it is “in reply to the brief of Respondent.” Rule 208(a)(3), SCACR. The reply brief gives the party bringing the appeal (the Appellant in the Court of Appeals; the Petitioner in the Supreme Court) one last chance to makes its argument. There is one major constraint in a reply brief that does not exist in the initial brief: it must “reply” to Respondent’s brief.

At a most basic level, this means one cannot raise issues in a reply brief that were not raised in the Respondent’s brief. A reply brief is not the venue for raising issues one inadvertently omitted from the initial brief. Nor is it a method to bolster arguments made in the initial brief that are not addressed in the Respondent’s brief. The obvious purpose of a reply brief is to reply to Respondent’s brief with the goal of undermining Respondent’s argument.

Take for example a custody appeal in which Respondent’s brief argues the family court did not abuse its discretion in deciding custody because the Appellant was less involved in the child’s day-to-day care. In reply Appellant could cite evidence in the record that he or she was more involved in the child’s day-to-day care. This essentially challenges the factual argument of the Respondent. Appellant could also reply that he or she should be awarded custody despite the Respondent handling more day-to-day care by citing evidence in the record that would overcome this adverse fact. Again, this is a factual argument. Appellant could reply that an “abuse of discretion” standard of review is too narrow legally. This essentially challenges the legal argument of the Respondent. However the argument that Appellant should get custody because Respondent is unfit would be inappropriate in this reply brief because it is not replying to Respondent’s argument.

The easiest way to organize a reply brief is to make a separate argument for each factual or legal assertion in Respondent’s brief that one is challenging and simply begin each argument by stating where and what the Respondent’s brief argues and then explain why that argument is factually or legally incorrect.

In drafting reply briefs there is a tension between restating arguments from the initial brief to counter factual assertions in the Respondent’s brief and boring the appellate court with redundant arguments. I assume the appellate court will read my initial brief so I try to limit restating factual arguments from the initial brief unless they are necessary to reply to Respondent’s brief. Further a reply brief doesn’t need to counter every argument Respondent makes. For example, in any custody appeal, Respondent can likely make factual arguments supporting his or her claim for custody. If Respondent’s factual and legal arguments are accurate, there is no compelling reason to “reply” to them. Doing so may merely highlight Respondent’s strengths.

Only if Respondent makes an argument that Appellant’s initial brief did not address and Appellant can cite legal authority or evidence in the record to undermine the argument, should Appellant reply to it. It is a mistake to reply to every argument Respondent makes. A reply brief shouldn’t merely argue with Respondent’s brief. Rather, it should undermine the factual and legal assertions Respondent makes in support of the lower court’s decision. That is the sole useful purpose of a reply brief.