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Reply briefs: rules and protocol in the battle for the last word.

The Florida Supreme Court in Boca Burger, Inc. v. Forum, 912 So. 2d 561, 573 (Fla. 2005), recently adopted the Fourth District's maxim that outcomes should not "depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last word." Though the court directed this warning at unsavory trial tactics, appellate attorneys are wise to keep this rule in mind--especially when it comes to the battle for the last word.

In the appellate arena, Florida Rule of Appellate Procedure 9.210(a) specifically grants the last word to the appellant through the reply brief. Rule 9.210(a) provides that "the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief." The cross-reply brief is only permitted when there has been a cross-appeal, which turns the appellee into a cross-appellant. Naturally, the rules grant the cross-appellant the final word in his or her cross-appeal (1) in Rule 9.210(e).

The Role of the Reply Brief

Rule 9.210(d)-(e) narrowly defines the role of the reply brief, limiting its content to rebuttal of the arguments made by the appellee in the answer brief. As the First District recognized in St. Regis Paper Co. v. Hill, 198 So. 2d 365,366 (Fla. 1st DCA 1967), "[t]he office of a reply brief is to respond to new matters contended by an opposing brief." Even though the reply brief does not provide the appellant with an unrestricted forum, appellants sometimes abuse their right to the last word (often inadvertantly), leaving the appellee with no opportunity to respond.

Florida courts have consistently prohibited appellants from arguing new issues in their reply briefs. "An issue raised for the first time on appeal in appellants' reply brief, even though properly preserved for appeal, will not be considered by this court." (2)

Despite such clear pronouncements from the courts, the reply brief is often subject to abuse by appellants. When new issues are introduced in the reply briefs, even experienced appellate practitioners find themselves at a loss. The rules do not provide a particular mechanism for responding to inappropriate reply briefs2 Likewise, case law does not establish a preferred means of drawing the court's attention to the infraction.

Generally speaking, each appellate district--if not each judge--has its own stance on how to respond to improper reply briefs. When asked how an appellee should respond, several judges have offered their own personal insights on the subject. While their opinions do not necessarily reflect their respective district's overall philosophy, they certainly illustrate the range of attitudes toward responding to improper issues in reply briefs.

Using Oral Argument to Respond

Many of the judges agreed that oral argument offers an advantageous opportunity for bringing these issues to the court's attention. Thus, when the appellee considers his or her options for responding to an inappropriate reply brief, the response should be tailored with oral argument in mind. For example, if an appellee's case rests in a district that grants oral argument as a matter of course, counsel can rest assured of having an available forum for responding to the appellant's reply brief.

Under Rule 9.320 of the Florida Rules of Appellate Procedure, however, a party's request for oral argument must be filed along with the final brief. ("A request for oral argument shall be a separate document served by a party not later than the time the last brief of that party is due.") For the appellant, the final brief is obviously the reply brief. The appellee's request for oral argument, however, must be made when filing the answer brief. Therefore, even if the appellee believes that oral argument is unnecessary, he or she may want to request argument, if for no other reason than to ensure an opportunity to respond to the appellant's reply brief. If the reply brief raises no objectionable arguments, Rule 9.320 permits the appellee to withdraw this request.

Responsive Motions

As discussed, the appellate rules do not provide a particular remedy for responding to inappropriate reply briefs. Therefore, the appellee often finds himself or herself constructing his or her own ad hoc motion or notice to alert the court to the improper argument. By and large, most judges recommended either a motion to strike and/or a motion to file a limited response to the new argument. Their attitudes toward filing these motions, however, reveal differing philosophies toward motion practice in the appellate courts.

Judge Patricia Kelly of the Second District warned appellees to use restraint when considering a motion to strike. "When you start getting into motions to strike, that's when I would tell people to use them judiciously," she cautioned. Kelly suggested appellees first determine whether the appellant's infraction has caused any real harm. In her opinion, motions to strike should be reserved for instances when the new argument causes the appellee real harm or prejudice. She also reemphasized the availability of oral argument to address any concerns regarding the appellant's reply brief. "Even if you do a motion to strike, and it's denied," she said, "I still wouldn't hesitate to bring it up at oral argument."

Like Judge Kelly, Judge Chris Altenbernd of the Second District advised that the circumstances of the alleged infraction should dictate the attorney's response. He said that the question of new issues in the reply brief is often a very nuanced one and may be better suited to resolution at oral argument. "By and large," he said, "appellate judges hate cases that get into motion wars. You want to get into the merits of the case and resolve it."

Judge Altenbernd also noted that some attorneys believe that unsuccessful motions have the effect of educating the court as to their position. He pointed out that the panel of judges that hears motions is often different from the panel that will hear the merits of the appeal. Though these motions are filed in the appellate pleadings file, Altenbernd cautioned that "it's unlikely that the merits panel will go through the pleadings file because they assume those issues have ironed themselves out." Thus, if an attorney files a motion simply to "educate" the court, he or she may find that those efforts have little to no instructive effect on the merits panel.

On the other end of the spectrum, Judge Ricky Polston of the First District expressed his own personal preference for responding to improperly argued reply briefs. He would always suggest filing a motion to strike inappropriate portions of reply briefs. Drawing from his experience on the other side of the bench, he noted that an attorney is never sure what issue the court will seize upon and rest its decision. Taking a better-safe-than-sorry approach, Polston advised always filing a motion to strike, though he stressed that his own opinion does not necessarily reflect the First District's policy.

Judge Richard Orfinger of the Fifth District suggested filing a motion to strike that also seeks leave to file a limited response to the newly added issue. Judge Leslie Rothenberg of the Third District offered similar advice, adding that the court may be more likely to grant a motion for limited response than a motion to strike. The determination of whether an issue comes within the scope of what was argued involves careful study of the record and the briefs, and an appellate court may not be willing to strike an argument before it conducts an in-depth review of the appeal.

Another possible recourse is the notice of filing supplemental authority under Florida Rule of Appellate Procedure 9.225. This option requires a certain degree of caution, however, given that notices of supplemental authority may not contain any argument. Instead, the rules provide that notices of supplemental authority may only reference the issue on appeal that the authority addresses. While such a notice does not provide the aggrieved party with an unlimited forum, some practitioners have found notices of supplemental authority to be a useful way to file case law rebutting newly pled issues or alerting the court to the fact that the reply brief contains a prohibited new issue.

Conclusion

While the judges' responses reveal a wide range of attitudes toward motions to strike and motions for limited response, this disparity of opinion further highlights the importance of oral argument as a responsive tool. When the appellee files an answer brief, he or she must remember that the decision to request oral argument may affect whether he or she gets the opportunity to respond to the appellant's reply brief. While motions to strike and motions for limited response certainly have their proponents in certain judicial chambers in Florida, a request for oral argument is perhaps the safest way to ensure that an appellee will have the opportunity to cure any abuse of the "last word" by the appellant.

(1) Judge Chris Altenbernd of the Second District noted that if no cross-appeal has been filed, all self-styled cross-reply briefs are automatically stricken as a matter of course.

(2) Snyder v. Volkswagen of Am., Inc., 574 So. 2d 1161, 1161 (Fla. 4th D.C.A. 1991). See also Gen. Mortgage Assocs., Inc. v. Campolo Realty & Mortgage Corp., 678 So. 2d 431,431 (Fla. 3d D.C.A. 1996) ("The fact that this issue was raised for the first time in the reply brief alone precludes our consideration of the matter."); Pursell v. Sumter Elec. Co-Op., Inc., 169 So. 2d 515, 518 n.2 (Fla. 2d D.C.A. 1964) (declining to consider an argument made for the first time in the reply brief).

(3) It is interesting to note that the rules governing review of workers' compensation proceedings provide explicit guidance as to this issue. FLA. R. APP. P. 9.180(h)(3). The rules prohibit motions to strike and encourage parties to use their own briefs to point out possible rules violations. If this option is not available, the rules permit the aggrieved party to file a "suggestion of noncompliance."

Finn Pressly is an associate in the appellate practice group at Fowler White Boggs Banker in Tampa. He received his B.A., cum laude, and J.D. from the University of Notre Dame. Mr. Pressly is licensed to practice in Florida and Illinois.

This column is submitted on behalf of the Appellate Practice Section, Thomas D. Hall, chair, and Wendy S. Loquasto, editor.
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Title Annotation:Florida
Author:Pressly, Finn
Publication:Florida Bar Journal
Date:Mar 1, 2006
Words:1741
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