Sunday quick read

On the Appellate Advocacy Blog, Robert Peck discusses how you might use a Reply to the Government's Answer to make a new argument.

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.
​
Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary. Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.” The Court thus claimed a great deal of unfettered discretion.

See United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95 (2022).