Example 15.2
Takeaway point 15.2: A reply brief should begin with an Introduction explaining why your client wins and why the other side’s position is fundamentally flawed.
Let’s turn to reply briefs.
A reply is the appellant’s last shot to make its case in writing. Your primary challenges in writing a reply are to rebuild arguments that the other side has attacked, to highlight any arguments that your adversary failed to counter, and to rebut your adversaries’ arguments. In general, the reply brief should stick to arguments raised earlier in the briefing rather than present new arguments. But reply briefs often reframe or provide alternative justifications for arguments that the other side obliterated. Try to make these new positions look like you raised them before, even if they’re largely new. And finally and perhaps most importantly, think of the Introduction in a reply brief as a closing argument of sorts — a chance to explain why, even in light of the other side’s brief, your client should still prevail. We see this technique below.This reply brief comes from a landmark First Amendment case. Citizens United is a nonprofit organization that wanted to display a Video On Demand movie that criticized Senator Hillary Rodham Clinton. A federal statute called the Bipartisan Campaign Reform Act (BCRA), however, prohibited corporations from using their general treasury to fund election-related communications within thirty days of a primary or sixty days of a general election. Citizens United challenged the law, arguing that political spending is a form of protected speech under the First Amendment and that the statute therefore violated the group’s speech rights. We see here the beginning of its reply brief in its case against the federal government.
Source: Citizens United’s brief from Citizens United v. FEC, 558 U.S. 310 (2010).
A common move in a reply brief is to synthesize and reject the other side’s view of the case. Citizens United uses this technique here, suggesting that the government’s position boils down to an attempt to “criminalize” a “political documentary” that might “influence federal elections.” Moreover, the first two sentences frame the dispute as a conflict between the core purpose of the First Amendment and an antiquated line of cases: This is an excellent way of presenting each side’s vision of what the case is about in a way that favors Citizens United.
This is another common move in an appellee’s brief or a reply brief: pointing out that the other party has failed to meet its burden. Just as importantly, notice that the reply provides several hints of what the case is about, just in case any Justices or clerks decided to read this brief first.
The brief emphasizes that the government’s brief omitted any evidence of one of the key traditional rationales for allowing restrictions on corporate speech — the risk of politicians improperly rewarding groups that helped them during the election.
A reply is the appellant-petitioner’s best chance to point out the ramifications of the other side’s argument. Here, Citizens United shows that the government’s regulation of speech reaches too far, resulting in a chilling effect on other forms of communication.
Unless a point is truly, indisputably obvious, avoid terms like “plainly” and “clearly,” which are lazy words. If the issue were actually plain or clear, the case would not require the Court’s attention.