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Maryland Court of Special Appeals Clarifies: Reply Briefs Must be Filed Within Twenty Days After the Filing of an Appellee’s Brief

Heit v. Stansbury
No. 354 (Md. Ct. Spec. App. 2011)

by Lindsey M. Brunk, Summer Associate
Semmes, Bowen & Semmes (

The Court of Special Appeals recently clarified MD. RULE 8-502(a)(3), the rule that establishes the timeline for filing reply briefs in Maryland appellate courts. RULE 8-502(a)(3) reads, “The appellant may file a reply brief within 20 days after the filing of the appellee’s brief, but in any event not later than ten days before the date of scheduled argument.” In this case, the Appellant had filed his reply brief over five (5) months after the Appellant had filed her brief, but it was nevertheless filed ten (10) days before the scheduled oral argument. The Appellee moved to strike the brief, on the ground that it was not timely.

The Appellant argued that the Rule allowed him to file a reply brief at any time, as long as it was filed within ten (10) days of oral argument. This reading focused on the words “may” and “shall,” which he contended meant that an appellant was permitted to file a reply brief within twenty (20) days after an appellee’s brief was filed, but it must be filed within ten (10) days of oral argument.

The Court of Special Appeals disagreed. The “flaw in [Appellant’s] argument” was that the words “shall” and “may” do not only refer to the timeline in which an appellant files a brief, but they also establish that there is no obligation for an appellant to file a reply brief at all. In the rule governing an appellant’s submission of a brief, it is explained that it “shall” be submitted within a certain time frame. MD. RULE 8-502(a)(1). In the rule governing an appellee’s submission of a brief, it is again made clear that it “shall” be submitted within a different time frame. MD. RULE 8-502(a)(2). However, in both of these situations, there is a consequence for the failure to file a brief. On the other hand, a reply brief is optional; the word “may” connotes that. If the word “may” were changed to “shall,” as it is in the other rules, this would take away the discretion; a reply brief would then be mandatory.

Under the Appellant’s reading of the rule, the “20 days” phrase would be entirely meaningless. There would be only one deadline for the filing of a reply brief—within ten (10) days of oral argument. The Court held that the better reading would be that a reply brief is due twenty (20) days after an appellant’s brief is submitted, but nevertheless within ten (10) days of oral argument, even if that invades the twenty (20) day timeframe. Though the Appellant suggested this interpretation would be to “rewrite” the Rule, the Court explained that “there can be more than one way to say the same thing,” and that their explanation was merely a clearer version of MD. RULE 8-502(a)(3). Because the Appellant’s reply brief was not timely filed, the Motion to Strike was granted.