Just a reminder that the revisions to the North Carolina Rules of Appellate Procedure have now taken effect, as of April 15. We discussed these changes at length here. Thanks to new Rule 28(h), you can now file a reply brief in every case.
This change opens up new strategic horizons. After all, you would not want to leave anything out of your principal brief if you think it might be your only chance to brief an issue. But with a reply brief of right, you can ask yourself whether it is really worth taking a preemptive swipe in your opening brief at a tangential argument that Appellee may or may not raise in its Appellee’s brief. Maybe a “wait and see” approach could be appropriate in certain circumstances.
Don’t misunderstand: You of course have ethical obligations to disclose controlling authority, and I’m quite sure the Judges don’t want to see intentional sandbagging of important arguments. But given the focus of new Rule 28(h) on providing an opportunity for an Appellant to offer a “concise rebuttal of arguments set out in the appellee’s brief,” you should consider whether arguments on the fringes can wait for your reply of right.