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The Rules of Court do not require that a reply brief be filed. However, absent unusual circumstances, a reply brief should be filed. The reply brief is of greater relative importance than oral argument. Oral argument frequently comes too late to change the judgesí minds. By then the case has been conferenced and a tentative opinion has usually been drafted. The reply brief is the point at which counsel must controvert the arguments made by the respondent.

The deadline for filing a reply brief is 20 days after filing of the respondent's brief. (Cal. Rules of Ct., rule 8.360(c)(3).) You will know the date the brief was served on you, but that is not necessarily the date of filing. For certainty as to the actual deadline, simply call the Clerk of the Court of Appeal or check the courtís website. If you cannot make the deadline, you may apply for an extension of time. If time has expired, you must apply for leave to file the brief late.

The time to start drafting the reply brief is during review of the respondent's brief. Note any cases relied on by respondent which were not considered or raised in the opening brief. Research for the reply brief will start with analysis and Shepardizing of those cases.

Take the opportunity to point out any factual inaccuracies in respondent's brief. Take pains to cite to the record to demonstrate that your rendition is correct. The reply brief is a good time to point out any areas of agreement between the parties or any concession to appellant's arguments.

The Attorney General's strategy is frequently to argue that the appellate court should not rule on the merits of the issues we raise. If the Attorney General can convince the court that the doctrine of procedural default applies, they may have a more lasting victory than if the appellate court rejects the issue on its merits. A finding of procedural default is usually fatal to any state prisoner petition that your client may file in federal court.

A persuasive reply brief is a succinct document which clearly and precisely refutes the material points made by the respondent. You should not recycle material from the opening brief. In addition, it is a poor tactic to quibble about meaningless errors in the respondentís brief. The goal is to demonstrate that the respondent has no good answer to the arguments which will lead to relief for your client.

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