After filing an opening brief, you have a month or more to see what your opponent has to say. The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time. How do you respond in your reply brief?
Laugh in private, but be respectful and neutral in public and in writing. Naturally, you hope and assume that the appellate panel shares your opinion of the bad brief, but you could be very wrong. Moreover, the more vigorously you attack and criticize, the less likely the judges are to do the same. The judges may know mitigating circumstances—a death in the family, a cancer diagnosis—that you do not. They may become sympathetic to your opponent if they believe your reaction is excessively critical. One of them may have had a similar experience of criticism in an early year. If the brief is as terrible as you think, let the judges say so.
Use the points in the bad brief to support the statement or restatement of your best position when that option is available. There may be concessions in the terrible brief that are helpful to your client. You are not compelled to find cases and better arguments for your opponent’s points; resist any impulse to do so. You need not restate your opponent’s arguments so they become comprehensible, and it is a mistake to do so especially if your restatement reveals an argument your opponent did not make. On the other hand, if there is a germ of an argument that you can defeat, there are benefits in doing so to prevent the judge from seeing merit in that germ
Image courtesy of Flickr by Nic McPhee (creative-commons license, no changes made).