The North Carolina Rules of Appellate Procedure were changed in 2013 to provide an appellant with a guaranteed right to a reply brief, whereas earlier versions of the Rules allowed a reply brief only in certain circumstances. See N.C. R. App. P. 28(h). Under the current Rule, the reply should be a “concise rebuttal of arguments set out in the appellee’s brief” and should not “reiterate arguments” from the principal brief. Id. Does that mean that you should wait and see if an appellee raises an issue and then address it in your reply brief?
Not necessarily. And the Court of Appeals reaffirmed this principle today.
In Larsen v. Black Diamond French Truffles, Inc., two defendants appealed from an order granting some, but not all, of the plaintiffs’ motions for judgment on the pleadings. The defendants’ brief addressed all of the substantive issues in the case, regarding a shareholder’s right to access corporate records and an award of attorney fees. What the brief did not address was the nature of appellate jurisdiction. Thus, the plaintiffs argued in their brief that the appeal should be dismissed as interlocutory. In response, the defendants asserted in their reply brief that jurisdiction was proper because the trial court order affected a substantial right. That assertion came too late.
The Court reminded us that it is the appellant’s burden to show that appellate jurisdiction is proper. And “a reply brief does not serve as a way to correct deficiencies in the principal brief.” In other words, an appellant must demonstrate jurisdiction from the outset–it cannot “establish grounds for appellate review via reply brief.” Therefore, the Court dismissed the defendants’ appeal.
Moreover, this rule goes beyond jurisdictional issues. In Cooper v. Cameron, the appellant tried to challenge the trial court’s findings of fact for the first time in his reply brief. The Court of Appeals rejected that argument and reiterated that a reply brief “may not be used to correct omissions in an appellant’s original brief or introduce new arguments the appellant failed to make therein.”
In summary, don’t “save” an argument for your reply brief. The principal brief should include all of the arguments that you want (or need) the appellate court to consider. Your “reply” brief is simply what the dictionary says it is: an “answer in words or writing.”