Discourse on summary judgment motions Part II (having the last word: the reply brief)
I posted a discourse on summary judgment motions on May 1, on the occasion of completing the exhausting task of preparing task a set of four related motions.
Now I’m back on the subject, as I’ve just completed the challenging reply briefs in the same case. Good summary judgment replies are arguably harder and more important than the original motions themselves.
I have heard other opinions (e.g. “judges don’t care about reply briefs”), but I always assume they will be read and consider them critical to success on summary judgment. The opportunity to have the last word — and lay out for the judge precisely how to rule in your favor despite the clever arguments of opposing counsel — is an opportunity that should not be wasted.
Here I offer some practical how-to suggestions for preparing replies. Much of this is equally applicable to appellate replies.
Before beginning a reply, check the applicable procedural rules. In federal court, local rules vary. Some districts provide that replies are discouraged and permitted only with leave of court. Others pretty much assume replies will be filed, but discourage surreplies. In some cases, fairly severe page limitations apply. Time limits may be short, and it may be desirable to seek additional time.
For years, my heart always sank when I read the opponent’s response to my summary judgment motion. Seemingly, they burst all my balloons. Then, after reading it several more times and picking it apart piece by piece, I usually realized the seemingly fatal blows to my motion were in fact totally survivable.
Eventually, I learned the lesson that any reasonably competent attorney can prepare a brief in opposition to summary judgment that sounds impressive on the surface, but it is much more difficult to prepare one that is truly persuasive on the facts and law of the case.
Distortions and misrepresentations of facts and/or law in opposing briefs are the rule, not the exception. Hence, the following initial steps in preparing the reply.
First, check every factual statement against the cited evidence very carefully.
Look for sly and subtle, but significant misstatements (and worse). For example, in deposition, asked about something another witness said he/she did, the plaintiff testified “I do not recall doing it,” but in the opposing brief, this testimony of the plaintiff is cited as “he/she recalls not doing it” (don’t snicker, I just saw this yesterday).
Look for compound sentences or multiple sentences supported by a single citation, where the citation only supports part of the sentence or fewer than all the sentences.
Look for factual statements not supported by any citation (also saw this repeatedly last week).
Next, check every cited case that appears significant. Often, the case does not stand for the proposition for which it is cited. Other times, while the case states the proposition, the context is different. Use your law school skills to distinguish cited cases, but don’t do so on trivial grounds.
Then, consider the admissibility of any affidavits or exhibits submitted by the opposing party. Fed. R. Civ. P. 56(e) requires that affidavits be made on personal knowledge, “set forth such facts as would be admissible in evidence,” and “show affirmatively that the affiant is competent to testify to the matters stated therein.” Don’t be too nitpicky, but look for conclusory or speculative statements, obvious lack of personal knowledge, and hearsay.
Fed. R. Civ. P. 56(e) also provides that “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading.” Surprisingly, it’s not unusual to see adverse parties doing precisely this (saw this repeatedly last week as well).
Now you’re finally ready to start the writing stage of the process. Of course, you want the final product to be as well organized and persuasive as your opening brief.
One of the common tactics of opposing counsel is to organize the opposition arguments completely differently than your opening brief (often in a rambling manner that can confuse the issues).
This leaves you several options for organizing the reply. You can follow the opposition’s organization, rebutting their points in the sequence they chose. You can emphasize your strongest rebuttal points by leading off with them (these may not be the same as the points you led with in your opening brief). Or you can return the argument to your original outline.
The first option is likely a mistake. It allows the opposition to dictate the terms of the debate. Chances are, they started with their strongest point (your weakest). Unless you can totally destroy them on this point, you’re leading with your chin.
There is definitely something to be said for the second choice. But I really doubt you will fool the judge and his/her clerks into being so impressed by your strong leading argument that they fail to adequately consider the remaining points.
I prefer the third option, even using the same argument headings as the opening brief. This encourages the judge and his/her clerks into applying your initial “roadmap” to the motion, which should make their task easier.
Another advantage is that surprisingly often the opposition says nothing or very little in response to some of your main points (concealing this deficiency by failing to follow your tidy, logical “roadmap” and instead making a rambling, disorganized argument). This allows you to have headings under which you can simply state: “Plaintiff apparently concedes Defendant’s argument on this crucial point.” (Touché . . . Eat dirt, sucker.)
A little high tech trick I have been using lately to help view the opposing party’s argument in terms of my “roadmap” is to scan and OCR their opposing brief and use the word processor to copy and paste pieces of it into the appropriate sections of my opening brief, using bold or italics to differentiate the two. This allows me to clearly see the points they have ignored entirely and to make a point-by-point comparison. I can add my own comments in a different font or in brackets or whatever.
At this point, I’m ready for a first draft that will not require extensive rewriting. Having done all this groundwork, the writing process itself should be a piece of cake, and the product well organized and persuasive.
There you have it. Now excuse me, I have to go do another reply brief. . .
