Appeals represent only a small fraction of all of the final orders issued each year by Indiana Trial Courts. Appeals take an additional emotional toll, are sometimes costly, and add several more months to the litigation. That said, the Appellant has the right, presupposing the potential Appellee, files an Appellee’s Brief, to have the proverbial last word on appeal and may file a Reply Brief not later than fifteen (15) days after the Appellee’s Brief is served. This is an Appellant’s right under the Indiana Rules of Appellate Procedure, but it is not required.1 This blog explores why most Appellant’s opt to file a Reply Brief and how it may benefit your case.
Appellee’s Brief limited to contentions in Appellant’s Brief. One of the most common reasons Appellant’s may decide to file a Reply Brief is because the Appellee sometimes strays in his or her argument and raises issues or argues matters not raised by the Appellee. This is prohibited.2 If these are egregious enough, it may be that you need to file a Reply Brief and request to strike portions of the Appellee’s Brief.3 The reason for this is a new argument or non-responsive argument to your appeal may obscure or deflect from the true issues you want to raise on appeal and need to be addressed by the Court of Appeals. Many litigants are frankly distraught at the Appellee’s Brief and effectively demand a Reply Brief be written.
Misstatements about facts or law or raises disputes about the same. Trials are dynamic in that the record a party may cite to comes from the Transcript, Exhibits, and/or Appendices. However, at times, an Appellee may cite to facts that are clearly disproven, taken out of context, or dubious at best in the record taken as a whole. If this is the case, there is ultimately concern by litigants the Court of Appeals may rely on this. Thus, a Reply Brief is the proper tool to argue and show why the Appellee is incorrect based on the record in its entirety. Sometimes, there may be disputes in the applicable law, a litigant cites a repealed case or one the Supreme Court has decided differently. In these cases, it is key to argue this mistake or dispute to the Court of Appeals in a Reply Brief.
Reclarifies your most important points. Presupposing the Reply Brief is sound, the Appellate is still afforded the last word. This, again, gives you the opportunity to argue in reply to the Appellee’s Brief why his or her argument is flawed or misguided to the issues before the Court. Thus, the final argument the Court of Appeals will review is that in the Appellant’s Reply Brief.
While there are times it may not make sense to file a reply brief, in most cases, it is a prudent use of legal resources. In deciding to authorize your appellate counsel to file a Reply Brief you should talk through the strengths and weaknesses of such, as well as any potential harm a Reply Brief could do to your appeal. These are thus the central considerations you need to discuss with your appellant counsel in determining whether to file a Reply Brief. This blog was written by attorneys at Dixon & Moseley, P.C. who handle appeals of all types from all final orders from the trial courts in Indiana’s ninety-two (92) counties. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
