Reply All? Knowing When (and When Not) to File a Reply Brief

In appellate practice, few tools are more tempting—and more easily misused—than the reply brief. It’s the last word you get to say to the court before oral argument (if you're lucky), and for many lawyers, that alone makes it irresistible. But here's the thing: just because you can file a reply brief doesn't always mean you should.

The reply brief is often the most misunderstood and inconsistently used part of the appellate process. And if you ask five appellate lawyers when to file one, you'll get six opinions and a sidebar about how their clerkship scars still haven't healed.

Take my office, for example. Among my colleagues, reply brief philosophy is a full-on ideological divide. I’m over here treating reply briefs like a rare, high-level spell that should only be cast under specific circumstances. My supervisor? He’s playing 4D chess—strategically holding back his best move for the reply. And then there’s another colleague who treats the reply like a flamethrower: torch everything the appellee said and hope the court is still reading by page 15.

So, how do you decide if you should write a reply brief—or if you're about to hand the court a rambling rehash that does more harm than good?

Let’s break it down.

The Purpose of the Reply Brief

The reply brief is not a second initial brief. It’s not a chance to double down, restate, or try a new spin on the same point you already made. It’s a surgical tool, not a blunt instrument. Its sole purpose is to address new arguments or misstatements of law or fact raised in the answer brief.

In the words of many appellate judges (some of whom were probably muttering into their coffee): “Don’t waste our time.”

Done right, a reply brief clarifies the key legal issues, corrects any mischaracterizations, and reinforces the strongest aspects of your argument. Done wrong, it feels like a third-rate sequel nobody asked for. (Looking at you, Jaws 4.)

When a Reply Brief Is Necessary

I file a reply brief when one of the following happens:

• The appellee flat-out misstates the law. I’m not talking about a nuanced disagreement. I mean cherry-picking, omitting key language, or citing pre-Gutenberg precedent to avoid a modern holding.

• The appellee reframes my argument into something it’s not. If they’re building straw men and then patting themselves on the back for knocking them down, I’m stepping in to course-correct.

• I ran out of room in the initial brief. Sometimes, you’ve got 50 pages’ worth of critical points and only 50 pages to say them. If a key issue was raised but couldn’t be fully developed, and the appellee’s answer brief opens the door for expansion, the reply brief is a good place to land that final punch.

  
  

In short: if I can say, “This reply is necessary to correct a mischaracterization or clarify a complex issue,” then I’m in.

When to Skip It

Let me say the quiet part loud: not every case needs a reply brief.

If you’re just repeating your initial argument in slightly different words, or if the appellee simply disagrees with your interpretation of the law in a way that’s already addressed in your initial brief, let it go. The court already has your position.

Filing a reply brief that rehashes everything not only wastes the court’s time—it telegraphs insecurity. “Didn’t we already cover this?” is not the reaction you want from a panel reading your work.

And worst of all, you risk diluting the impact of your key arguments. The reply brief should be tight, precise, and strategically necessary—not a nervous tic.

How to Use the Reply Brief Effectively

• Stay focused. This is not a general response. It is a response to the answer brief. Resist the urge to wander.

• Be selective. Identify the appellee’s weakest links and hit them precisely. Don’t rebut every point—they’re not all worth your time (or the court’s).

• Maintain credibility. Don't turn this into a personal sparring match with opposing counsel. Keep the tone professional, even if the temptation to write “LOL, seriously?” is strong.

• Echo your theme. Use the reply to reinforce your main theory, not invent a new one.

  
  

The Philosophy Divide: Tales from the Brief War Room

Now, as promised, a peek into the philosophical schism among my colleagues:

• My supervisor is the master of restraint—at first. He’ll purposefully downplay his strongest argument in the initial brief so he can hit it hard in the reply. He believes there’s real power in having the last word when the court is looking for clarity before drafting an opinion. It’s dramatic. It’s calculated. It’s... risky. But when it works? It’s surgical-grade advocacy.

• Another colleague takes the opposite approach. Their reply briefs are scorched-earth operations. Every point in the answer brief gets a rebuttal, whether it deserves one or not. It’s aggressive, and at times, exhausting. (Especially for the law clerks. Sorry, clerks.)

• Then there’s me. I file reply briefs like I’m rationing oxygen. If the court already has what it needs to rule in my favor, I don’t want to mess with that. I trust my initial brief to carry the weight—unless something egregious crops up in the response that demands a rebuttal.

  
  

Final Thoughts: Just Because You Can Doesn’t Mean You Should

Reply briefs are powerful—but only when wielded with intention. If you’re filing one just because you can, pause. Ask yourself whether it truly advances your client’s position or simply clutters the record.

You don’t need the last word. You need the right word.

And if you’re not sure whether to file a reply? Write it anyway—then sleep on it. If it still seems essential in the morning, file it. If it reads like déjà vu or petty potshots, do the court (and your client) a favor and hit delete.

Because in appellate advocacy, silence is sometimes the most persuasive argument of all.