In the 1938 Russian film "Alexander Nevsky," the eponymous military genius, recruited to protect Russia against invading Teutonic knights, is asked to propose a strategy for defense. "Defense?" scorns Nevsky. "I know nothing of defense. We shall attack!"
When you are representing an appellee (or respondent, or real party in interest, depending on the proceeding or the forum), it's tempting to think only in terms of defense. After all, you hold the high ground. The trial court or jury decided in your client's favor. The appellant has the burden of showing reversible error. The standard of review (with few exceptions) favors the appellee. So why not let the appellant take the lead, and just meet the appellant step-for-step? That's probably why so many appellees' attorneys organize their briefs as simple responses to the appellant's opening brief. They adopt the same issues the appellant frames. They organize their arguments in the same order as that in the opening brief. Some even adopt the appellant's statement of the case, fact statement, and standard of review by reference. view more