What Happens If Appellee Does Not File An Opposition Brief?

Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.

… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee’s brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee’s brief, or (3) it may reverse the trial court when the appellant’s brief demonstrates prima facie reversible error that is supported by the record …

An appellee — at least one with the resources to do so — has to be pretty nervy to decide not to file a response brief. Why would you consciously decide not to file a response? I see only two legitimate reasons: (1) you can’t afford it or (2) the appellant’s positions are so lacking in merit that a response is not necessary.

Don’t delude yourself with respect to the latter. We’ve all seen dead-bang-winners turn into something else. The conceit that comes with winning in the court below can be dangerous.

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