To Sur-reply with Love
“Come, woo me, woo me, for now I am in a holiday humour and like enough to consent.”
An intrepid Bard of the Bar reader asked what to do about supplemental briefs in the Court of Appeals, i.e., what are the rules? What are you allowed to file beyond the standard three filings of appellant’s brief/appellee’s brief/appellant’s reply brief?
In the trial courts, attorneys have a tool known as a sur-reply at their disposal. Black’s Law Dictionary defines “sur-reply” as:
A movant’s second supplemental response to another party’s opposition to a motion. Sometimes written sur-reply.
So, in the trial court, a party (the “movant”) files a motion, the opposing party (“non-movant”) files a response, the movant files a reply to that response, and, by leave of the court, the non-movant may now file a sur-reply to the movant’s reply to their response.
The appellate rules do not provide for such a fourth filing in the appellate process. C.W.H. v. L.A.S., 538 S.W.3d 488, 497 (Tenn. 2017); Tenn. R. App. P. 27(c). In an appeal, the Appellant files a brief, the Appellee files a brief in response, and the Appellant files a reply brief to Appellee’s responsive brief. Only if the Appellee also requests relief from the final judgment of the trial court, creating what some people call a “cross-appeal,” does a fourth filing come into play as the appellant’s response to the appellee’s cross-appeal, and subsequently the appellee’s reply to that response. C.W.H at 497.
You really don’t hear the term “sur-reply” much outside of the federal courts. The term refers generally to replies to responses that come after the normally expected sequence of pleadings. There are essentially three ways something like a sur-reply can enter the Tennessee appellate process:
1. The Court invites you to file a brief either before or during the oral argument;
2. You ask for permission to do so from the Court and they grant it; and
3. Something happens that you feel you have to respond to, and you do so in the form of a motion to file such a supplemental brief.
I once filed, as counsel for the Appellant, a “sur-reply” in the Court of Appeals when opposing counsel said something significant at oral argument that was just dead wrong, and I was unable to address it in my rebuttal. I felt compelled to say something about that, so I did.
The fact is that there is no iron-clad procedure for filing sur-reply briefs. It falls somewhat into the where-there’s-a-will-there’s-a-way category. So, if sur-reply you must, remember to sur-reply with love for the Court.
