10 Tips for Securing Beneficial Amicus Support on Appeal
By Melinda S. Kollross, published by the Federation of Defense & Corporate Counsel in the Fall 2020 issue of Insights.
Amicus curiae or “friend of the court” briefs are submitted by persons or entities who are not parties to a given lawsuit. Originally intended as neutral, objective third party pieces, today’s amicus briefs usually take sides, advocating in favor of a particular party or outcome. Thousands of these amicus briefs are filed every year in cases pending before the United States Supreme Court, state supreme courts, and intermediate appellate courts throughout the federal and state judicial systems.
The potential influence of such briefs is manifest— reviewing courts regularly cite to them in their opinions. As stated in an American Bar Association article on the topic: “One study showed that between 1986 and 1995 the U.S. Supreme Court referred to at least one amicus brief in 37 percent of its opinions; another study revealed that state supreme courts acknowledged or cited amicus briefs in 31 percent of cases and discussed arguments made in amicus briefs in 82 percent of the cases sampled.”
Indeed, the FDCC recently filed an amicus brief in the Florida Supreme Court. Wilsonart LLC v. Miguel Lopez, No. SC19-1336. The Wilsonart court will decide whether to adopt the federal Celotex/Anderson standard for summary judgment in place of Florida’s current stricter standard. The FDCC’s amicus brief supports this major change, which it deems “a point of interest to all FDCC members.” (Winter 2019, FEDERATION FLYER, FDCC News, p.48). Many other organizations have also filed amicus briefs in Wilsonart. This is just one example of many across the nation.
The following tips can help you decide when amicus support should be sought, how it can most readily be obtained, and how to maximize its effectiveness in your case.
1. Assess the Need for Amicus Support Promptly
It is never too early to begin thinking about amicus support. If your case involves a legal issue with potential significance beyond the parties to the action, amicus support should at least be considered. In most instances, of course, amicus support will not be pursued. Whether for strategic, tactical, economic or other reasons, the majority of appeals are resolved without amicus input. The one exception is United States Supreme Court practice, where amicus participation is the norm rather than the exception. In fact, over 800 amicus briefs were filed in the Court’s 2017 Term alone. (See https://www.scotusblog.com/2018/07/empirical-scotus-getting-rid-of-those-amicus-blues/).
So what factors should weigh in the amicus analysis? First and foremost is the significance of the legal issue(s) being addressed—beyond the instant litigants. Will the appellate tribunal’s ruling in this case make new law or change existing law to a significant degree? Are major economic or social policies involved? Will thousands of people, businesses, organizations or governmental entities potentially be affected? Are “hot button” issues in play? If the answer to any of these questions is “yes”, a reasonable basis for seeking amicus support exists.
A second consideration is the position and preferences of the parties. Is this a good test case for the issue(s) at hand? Does the party litigant desire amicus involvement? Is counsel an experienced appellate practitioner who knows the benefits of obtaining amicus support and how to secure that support if desired? How does the court view amicus filings? Is it welcoming like the United States Supreme Court or leery of amicus briefs like the Seventh Circuit Court of Appeals?
The amicus analysis should be performed sooner rather than later. Doing so will afford more time for the rest of the process if amicus support is going to be pursued.
2. Review Applicable Amicus Rules and Deadlines
The procedural rules governing amicus filings vary from state to state and between the federal circuit courts of appeal and the United States Supreme Court. It is imperative that any litigant seeking amicus support review the applicable amicus rules at the outset to gain a complete understanding of the process. Of particular note are: (1) the means by which amicus filings are permitted, (2) whether amicus briefs are allowed at the present stage of the proceedings, (3) deadlines for filing amicus briefs; and (4) content and format requirements for amicus briefs.
In the federal system, amicus briefs are permitted by leave of court (i.e. upon motion), at the court’s request, or with the consent of all parties. (See S. Ct. R.37 and FRAP 29). Governmental entities and their officers may file an amicus brief without the consent of the parties or leave of court. (Id.) The states each set their own rules for permitting amicus briefs, which may include leave of court, at the court’s request, upon written consent of all parties, or some other requirement(s). Where a motion is required, the states vary as to whether the proposed amicus brief must be filed with the motion. In federal court, the proposed amicus brief must accompany the motion. (Id.).
b. Stage(s) Allowed
The United States Supreme Court allows amicus briefs in support of or in opposition to a petition for a writ of certiorari and at the merits stage. The states vary as to whether amicus briefs may be filed concerning requests for permissive appeals. For example, Illinois does not allow amicus briefs supporting or opposing a petition for leave to appeal to the Illinois Supreme Court. New York does allow amicus briefing on motions for permission to appeal, provided leave of court is obtained. And Pennsylvania allows amicus briefs in support of or against a petition for allowance of appeal, if the amicus curiae participated in the underlying proceeding as to which the petition for allowance of appeal seeks review, or by leave of court. Some courts allow amicus briefs on petitions for rehearing, some do not. Always check the rules and speak with court personnel to confirm whether amicus support is allowed at your stage of the litigation. Doing so can save time, effort and money—not to mention the potential embarrassment of asking for amicus support (or attempting to file an amicus brief) where the rules do not allow it.
Rule 29(6) of the Federal Rules of Appellate Procedure specifies that for amicus briefs during initial consideration of a case on the merits, “[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.”
United States Supreme Court deadlines depend on the stage of the action. At the certiorari stage, the deadline to file an amicus brief in support of the petitioner or appellant is 30 days after the case is placed on the docket or the Court calls for a response, whichever is later. (S. Ct. R. 37.2). These deadlines may not be extended. The deadline to file an amicus brief in support of a respondent or appellee is the same as the deadline to file a brief in opposition or motion to dismiss or affirm. This amicus deadline is extended when the deadline to file the brief in opposition or motion to dismiss or affirm is extended. (Id.).
At the merits stage, the deadline to file an amicus brief is 7 days after the brief for the party supported. If the amicus does not support either party, the deadline is 7 days after the time allowed
for filing the petitioner’s or appellant’s brief, irrespective of when briefs are actually filed. These deadlines may not be extended. (S. Ct. R. 37.3(a)).
State court deadlines for filing amicus briefs vary from state to state. Be sure to check them at the outset so you know what time frame you have to work with and can advise prospective amici accordingly.
d. Brief Content and Format
The applicable rules governing content and format for amicus briefs must be followed precisely. This includes all requirements concerning the amicus statement of interest, which may or may not include disclosure of information concerning who paid for and/or participated in authoring the amicus brief. Some courts, like the Seventh Circuit, will pre-approve briefs for filing. Failure to scrupulously abide by all content and format rules risks rejection of the amicus brief entirely, or diminished credibility if the brief is accepted.
3. Identify Potential Amicus Filers
Amicus support can come from many sources. These include academics or other experts, businesses, professional and trade associations, all manner of nonprofits, and governmental entities at the local, state and federal level. Such individuals and groups may be interested in getting involved in your case because:
- They possess expertise in the subject matter of the litigation and thus stand in a position to educate the court;
- The court’s resolution of the case may impact the members of a particular business, industry, profession or trade and the amicus wants to speak to the court on their behalf;
- They espouse a particular value, mission or world view that may be advanced or hindered by a ruling on the issue(s) at hand;
- Governmental policy concerns or operational interests may be directly or indirectly impacted by the court’s decision.
Several of these considerations might be implicated in a given case. Thus, it is not unusual for multiple amici to file briefs in particularly significant matters. For example, six other entities have joined the FDCC in filing amicus briefs in Wilsonart: The US and Florida Chambers of Commerce, Florida Defense Lawyers Association, Florida Justice Reform Institute, Florida Trucking Association, Health Care Association & Associated Industries of Florida, and the Products Liability Advisory Council. (Winter 2019, FEDERATION FLYER, FDCC News, p.48). A high profile United States Supreme Court case may garner 50-100 amici.
Sometimes a party litigant knows of many potential amicus supporters, other times a few brainstorming sessions may be necessary to prepare a list of amicus candidates. In either case, one amicus might be able to help identify other individuals and entities to be contacted for additional amicus support. Indeed, organizations that regularly file amicus briefs frequently have a network of other organizations that they are used to working with on amicus filings.
4. Summarize Key Facts and Issue(s) To Be Addressed
Before contacting individuals or entities to inquire about amicus support, it helps to prepare a succinct written summary of the key case facts and issue(s) to be addressed. This is essential if “cold calling” a major national organization like the American Medical Association or the US Chamber of Commerce for amicus assistance. But it is also beneficial when reaching out (by telephone, email or in person) to smaller groups and individuals or organizations with whom you have personal contacts. Think of it as your amicus “elevator speech.” You want to be able to explain in just a few sentences what type of case you have, where it is pending, what the key issue is, and why you think whomever you are addressing would want to get involved as an amicus. Also know the applicable deadline for the amicus brief you are requesting…it is one of the first things many recipients of your speech are going to ask.
5. Contact Amicus Candidates
Once you have your elevator speech prepared, you are ready to start contacting amicus candidates. The process for doing so depends on the party litigant’s relationship to the prospective amicus candidates. If the party is a member of prospective amicus organizations or has used amici in the past, a few telephone calls or emails to contacts may get the ball rolling. In cases with less preexisting contacts, “cold-calling” via an organization’s website, amicus committee, or general information number may be in order. The goal here is to generate enough interest with your elevator speech to get in front of the right decision makers who can approve amicus participation. Be prepared for a few rejections. Prospective amici usually have time, budget, personnel, and policy constraints that limit the number of cases they can get involved in, especially if they will be responsible for preparing their own amicus brief rather than just joining someone else’s.
6. Define Amicus Roles
An effective amicus curiae brief can assist the court in one or more well-recognized roles.
First, an amicus brief can clarify and/or supplement the main legal and factual arguments made in a party’s brief. This may be particularly helpful in complex cases, or those where space limitations impact a party’s ability to comprehensively address the issues in their own brief. It may also be useful where additional non-record facts and data would assist the court in making a more fully informed decision. A “me too” amicus brief that simply repeats a party’s arguments using slightly different language does not assist the court and should be avoided.
Second, an amicus brief can advise the reviewing court of the potential legal, social and/or economic impact of its decision on particular individuals, groups, businesses, industry or the public at large— beyond the parties to the present case. Such briefs typically include non-record facts such as social science data, research studies, economic analysis, and other supporting information.
Third, an amicus brief can provide a more complete and comprehensive view of the larger legal landscape for the appellate court’s decision. Such a brief may inform the court of other pending cases that may be impacted by its ruling, note variations and distinguishing factors among the cases, and propose a refined legal analysis or limited ruling in light of the “bigger picture.” This type of amicus brief can also present in depth analysis of a statutory or regulatory framework beyond that contained in the party briefs.
Fourth, an amicus brief can offer deep expertise in specialized fields beyond that possessed by the parties. Amicus briefs from academia, subject matter experts, professional, business, or trade associations, and various governmental entities can all educate the court on issues that the parties may not fully recognize, understand or explore in their briefs.
7. Coordinate Amicus Strategy
Whether you have one amicus or several amici, coordination is key to maximizing effectiveness. The party and its amicus supporter(s) should confer early on concerning record materials, existing research, applicable rules and deadlines, the supported party’s main arguments, known opposing arguments, and the role each amicus brief will fulfill. Doing so can save time and money while avoiding duplicative arguments and other needless redundancies.
Sophisticated parties and their appellate counsel will continue to communicate regularly with their amicus supporters throughout the briefing process. Draft briefs (main and amicus) should be circulated for review and comment among all concerned so that everyone stays informed and aligned. For respondents/appellees, opposition briefs (party and amicus) should likewise be circulated for review (and possible refutation) by supporting amicus curiae. Amicus briefs filed in support of neither party must also be considered as such briefs may favor one side or the other despite its professed neutral stance.
8. Encourage Joint Amicus Briefs
The Circuit Advisory Committee Note to Rule 29.1 of the United States Court of Appeals for the Ninth Circuit States:
The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the Court will review the amicus curiae brief in conjunction with the briefs submitted by the parties, so that amici briefs should not repeat arguments or factual statements made by the parties…. (Rev. 7/94; 12/1/09)
These words of wisdom apply beyond the Ninth Circuit. No appellate court wants to read multiple “me too” amicus briefs raising the same facts and arguments as the party brief or the briefs of other amicus filers. A joint brief filed on behalf of multiple amici is vastly preferable to a series of repetitive briefs that dilute the impact of key points and reduce persuasive value overall. More is not better in this context. It is counterproductive.
9. Assist Amicus in Effectively Presenting Their Perspective
Parties and their counsel should not write or pay for any part of an amicus brief, which would seriously undermine its credibility. However, it is perfectly appropriate for parties and their counsel to meet with amici, suggest approaches for briefing, and provide feedback on draft briefs circulated for review. An effective amicus brief should be short, simple, complete and compelling. It should offer the court something new and significant to consider in its analysis. Avoid exaggeration, overstatement, and attacks on opposing counsel (or their amici).
The most powerful amicus briefs contain more than a thorough legal analysis of cases and statutes. As one commentator explains: “[c]ommon-sense reasoning, addressed to real consequences, has great importance to the Court….The amicus brief that puts technical legal reasoning into a pragmatic context will receive the most attention.” (See https://www.mayerbrown.com/en/perspectives-events/publications/no-date/amicus-briefs-in-the-supreme-court).
Unlike party briefs, amicus briefs may cite facts and materials outside the record. But they may only do so in analyzing general legal principles and policy issues. They may not seek to “supplement” the record on appeal by citing evidence specific to the parties or the instant case that was not made part of the record below.
Finally, amicus briefs should focus on the proper development of the law and not just the desired result in the case at hand.
10. Leverage Amicus Support in Party Brief(s) and at Oral Argument
Do not assume that the reviewing court will necessarily read all, or any, of the amicus briefs filed in your case as a matter of course. Instead, leverage the most compelling points from your supporting amicus briefs by referencing them directly in your party briefs and potentially at oral argument as well. Doing so may convince the court to review an amicus brief it otherwise would not have read, or at least be made aware of the most critical information contained in such briefs so that it may be considered in the court’s decision-making process.
Securing high quality, compelling amicus support for your position in a significant case can increase its persuasiveness and improve your chances of success on appeal. As Justice Ruth Bader Ginsburg has noted: “There is useful knowledge out there in friend of the court briefs.” (See https://empiricalscotus.com/2016/05/11/the-most-effective-friends-of-the-court/). Justice Breyer has likewise commented that amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.” Justice Alito concurs, observing that “[e]ven when a party is very well represented, an amicus may provide important assistance to the court . . . [by] collect[ing] background or factual references that merit judicial notice.” (Allison Orr Larsen, William & Mary Law School Research Paper No. 09-273, 100 VA. L. REV. 1757 (2014)).
Take it from these experts: a well-written amicus curiae brief presenting compelling information and argument beyond that contained in the party briefs truly is a “friend of the court.” Such briefs are well worth a party litigant’s efforts in obtaining them to provide the appellate tribunal with additional insights into why that party’s position is the correct one, promoting the proper development of the law and maximizing its chances of prevailing on appeal.