The dance of the brief

Eliminating a trap for the unwary

De Novo Review

Michael Scodro

Michael Scodro is a partner in the Supreme Court and appellate practice at Mayer Brown.  Previously, he served for more than six years as Illinois solicitor general.  Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and  currently serves as president of the Seventh Circuit Bar Association.

February 2020

Appellate practitioners are familiar with the choreography involved in briefing cross-appeals. Rather than the traditional, three-brief sequence — in which the appellant and appellee submit their principal briefs in turn, followed by a shorter, appellant’s reply — cases with cross-appeals routinely require four filings: a principal appellant’s brief, a brief from the appellee/cross-appellant responding to the appellant’s points and introducing the cross-appellant’s own challenges, a combined filing from the appellant (now appellant/cross-appellee) that functions as a reply and a response to the cross-appellant’s points, and finally, a reply by the appellee/cross-appellant in further support of its arguments as cross-appellant.

Like so many courts, the federal and Illinois appellate courts prescribe this sequence in their rules on merits briefing, and critically (but not surprisingly) these rules allow the appellee/cross-appellant to use more pages/words for its principal brief, because this filing does extra work — serving as the party’s response to the appellant’s opening brief and as a principal opening brief on matters the appellee raises as cross-appellant.

Likewise, federal and state rules grant the appellant/cross-appellee additional time to file, and more space, for its reply, because it too does double duty, functioning as a traditional reply in support of the appellant’s challenges to the judgment below while responding to the arguments the other side raised as cross-appellant in brief.

Thus, for example, the 7th U.S. Circuit Court of Appeals gives an appellee/cross-appellant up to 16,500 words (compared to 14,000 for a traditional principal brief), for its combined principal/response brief. 7th Cir. R. 28.1. And the appellant/cross-appellee then has a full 14,000 words (compared to 7,000 for a traditional reply brief) for its combined reply/response. 7th Cir. R. 28.1. This brief is also subject to a later deadline than a traditional reply — whereas appellants usually have up to 21 days to file a reply brief, they have 30 days to file their combined reply/response. Fed. R. App. P. 28.1(f)(3), 31(a)(1).

In the Illinois Appellate Court, an appellee/cross-appellant receives an additional 9,000 words, or 30 pages (beyond the usual limit for response briefs) for its combined principal/response. Ill. Sup. Ct. R. 341(b)(1). And the appellant/cross-appellee receives the same 9,000-word/30-page extension for its combined reply/response. As in federal court, moreover, the appellant/cross-appellee has more time — 35 days rather than the 14 days usually allotted for a reply — to file its combined brief. Ill. Sup. Ct. R. 343(a), (b)(1).

Until quite recently, the state rules did not appear to apply these same principles to merits briefs in the Illinois Supreme Court. Supreme Court Rule 315(h), which governs briefs in that court, provided as follows for cross-appeals: “If the brief of appellee contains arguments in support of cross-relief, the appellant’s arguments in opposition shall be included in the [appellant’s] reply brief and the appellee may file a reply brief confined strictly to those arguments within 14 days of the due date of appellant’s reply brief.”

And as the March 2018 installment of this column explained, by addressing cross-appeal briefing without purporting to extend length or time limits, this sentence implied several departures from typical cross-appeal briefing rules, including the procedure used in the Illinois Appellate Court.

Specifically, this language in Rule 315(h) suggested that the appellee/cross-appellant did not receive any additional words or pages for its opening brief (even though this brief serves the two functions described above) and that the appellant/cross-appellee’s combined reply/response was limited to the length of a traditional reply brief and was due a mere 14 days after the appellee/cross-appellant’s brief.

As the March 2018 column indicated, moreover, the Supreme Court Clerk’s Office was reading Rule 315(h) in this way. Accordingly, I recommended that parties to cross-appeals wishing additional time or space seek that relief by motion.

Starting on Oct. 1, 2019, however, such a motion is no longer needed. The relevant passage in Illinois Supreme Court Rule 315(h) has been amended to read: “If the brief of appellee contains arguments in support of cross-relief, the appellant may file a combined reply brief and response to the appellee’s request for cross-relief within 35 days of the due date of appellee’s brief … ” Further, “[i]f the brief of appellee contains arguments in support of cross-relief, then the length limitations for cross-appeals in Rule 341(b)(1) shall apply to the briefing in the case.”

In short, parties to cross-appeals in the Illinois Supreme Court are now subject to the same brief-length and timing rules applied in the state’s appellate court, eliminating a potential source of confusion and trap for the unwary.