Example 15.3
Takeaway point 15.3: After explaining in an Introduction why your client should win, your reply brief should rebuild your client’s arguments and rebut the other side’s position.
After both sides have submitted their briefs, each side’s arguments may lie in shambles, bludgeoned by the intellectual force of fine lawyering.
A reply offers a valuable chance to restore order to the case by explaining why your client’s arguments can withstand the other side’s onslaught and why the other side’s arguments fail. We see this technique below in an aggressive reply brief from a case we considered in Chapter 5: the City of Valdez taxed certain boats that docked in the city’s port, and the tax fell exclusively on large oil tankers. Polar Tankers, which owned large oil tankers, challenged the tax, alleging that it violated the Tonnage Clause, which blocks states from discriminating against specific ships or shipowners.Source: Shipowners’ reply brief from Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1 (2009).
The reply uses a very short Introduction to reiterate its main point: that a state tax that discriminates against certain boats is unconstitutional.
Notice that the brief inverts the order of “Rule” and “Application” from the CRAC organizational strategy (discussed at the beginning of Part II of this book). This approach (declaring several facts from the case and then mentioning the relevant legal standard) is a good way to occasionally tweak CRAC so that your arguments don’t take on a rote or repetitive quality.
The reply walks through the critical exchange, explaining what Polar Tankers argued, how Valdez countered, and why Valdez is wrong.
alt=00034.jpg> This stellar passage judo throws the respondent’s brief: the Court has never invalidated this type of tax because this type of tax is so plainly unlawful that everyone knows better. Here the lawyers argue from an absence of evidence. When you make bold historical claims such as these, diligent research is critical.
The reply uses a historical argument (see Chapter 10) and a vivid metaphor (see page 35) to show that the dispute is about more than just vessel taxes: it’s about correctly interpreting a clause of the Constitution that was central to nationhood. The previous paragraph characterizes Valdez as being formalistic, suggesting that a bogus tax can survive just by placing it “in sheep’s clothing.” And here, Polar Tankers shows that the need to prevent discriminatory taxes matters — a policy argument (see Chapter 9) as shown by the need to save “patient[s]” from “bleeding at both arms.”