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Trial Practice

Amicus Practice: New Rules for Old Friends

By David B. Smallman

Amicus briefs are deemed desirable only when: a party is not represented competently or is not represented at all; the amicus has an interest in some other case that may be affected by the decision in the present case; or the amicus has unique information or perspective that can assist the court beyond the help that the lawyers for the parties can provide.

Whether you are a friend to the court, a friend to a party, or a neutral advocate for an issue that simply matters to your client, the death of a proposed amicus filing should be preventable in nearly all cases. Here’s how.

Pay close attention to new rules and evolving case law. You are bound to follow the applicable rules governing "friends" rather than parties. You must know these rules, including the local rules of practice.

A 1990 revision to Supreme Court Rule 37 provides that an amicus curiae brief which brings relevant matter to the Court’s attention that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus brief which does not serve this purpose burdens the staff and facilities of the Court and its filing is not favored.

Another major rule change followed in 1997 amidst controversy over the perception that parties were circumventing the page limits on their briefs by writing and/or financing amicus briefs. New Rule 37.6 requires that an amicus disclose whether counsel for a party wrote the brief in whole or in part and also requires identification of every person or entity–other than the amicus, its members, or its counsel–who made a monetary contribution to the preparation or submission of the brief.

In 1998, the Supreme Court prescribed major revisions to the Rules of Appellate Procedure–including an overhaul of the rule governing briefs of amicus curiae. Amended Fed. R. App. P. 29 requires that an amicus state not only the reason why its brief is desirable, but also why the matters asserted are relevant to the disposition of the case. An amicus must include a concise statement of its identity, its interest in the case, and the source of its authority to file.

Another significant change provides that the amicus brief is no longer due on the due date of the supported party’s brief. Instead, an amicus has up to seven days after the principal brief of the party being supported is filed. However, the motion for leave to file may no longer be filed ahead of time, but must now accompany the brief. An amicus will be expected in all circumstances to know about the brief already filed by the party it supports. Courts will also expect the amicus to avoid repetition and to comply strictly with the Rule 29 criteria. Perhaps most significantly, because the brief must now accompany the motion for leave to file, all federal appellate courts will have a threshold mechanism to reject amici curiae who stumble at the gate.

Overall, the federal appellate courts will now require proposed amici to tell them why their participation is desirable, how their position is relevant to the case, who the amicus is, and what they are doing there in the first place. State courts have also begun to crack down on perceived abuses in amicus practice.

Plan ahead. An organization does not have to wait until the wolf is at the door before preparing amicus briefs that can help its constituency and the court. For example, the International Association of Defense Counsel (IADC) has undertaken an initiative to identify half a dozen recurring issues that all of its members can agree on. By adopting a particular approach to an issue, and by articulating a basic theme, the IADC has tried to eliminate disputes over "friend of the party" briefs. The idea is to draft a short brief with a distinct view that can be used whenever the need arises.

Do not be afraid to supply critical facts, but assemble them carefully. Amicus curiae representing divergent ideological viewpoints often support their positions by reference to matters outside the record before the court–the so-called Brandeis brief. In the U.S. Supreme Court, justices usually cite amici for nonlegal information, which cites are often incorporated into their opinions. Although amici may benefit from offering a less-than-entirely-balanced presentation of facts that go beyond the existing record, the reviewing court is free to reject irrelevant, inaccurate, or distorted information. By the same token, matters of public record or related materials that would survive scrutiny under evidentiary standards for judicial notice are typically fair game.

Line up amicus support early. Find similarly situated entities at the earliest possible stage of the case. Once amici have agreed to go to bat for you, you must communicate what you do and do not want from them. Consider telling the amici not to belabor any specific point, but to focus in the broadest possible terms on the ramifications of the case and what effect the decision will have. Also consider selecting lawyers who already have keen interest in the issues and are not looking for specific rewards other than advancing the cause. Recognize that even allies will have their disagreements, and try to recruit lawyers with whom you can engage in a constructive dialogue. Look for an amicus who can deliver a clever and inventive brief that takes a fresh, even innovative, approach.

Deal with the unwanted or outrageous amicus brief. If you have a runaway amicus "on your side," the best thing may be to ignore the brief or distance yourself when you have an opportunity to file your reply. Sometimes, it may not be sensible to make a fuss opposing filing when an amicus wants to take your side.

On the other hand, if a person or entity that is morally, ethically, or otherwise repugnant to your client seeks to support your cause, or if the proposed amicus brief does more harm than good, you may have to demonstrate your dismay by filing a motion opposing leave to file. If you originally solicited the now-repugnant amicus, you may have to reveal that fact and explain your change of heart; otherwise the rejected amicus may disclose that you sparked its desire to be heard.

Realize when you will not want amici. If your case involves purely legal arguments, introduction of extraneous information or policy issues may inject unwelcome unknowns into the equation. Your first obligation is to represent your client. Appeal cases in the way that is in the client’s best interest.

Conclusion. Because judges want to be made aware of unintended ramifications of ruling on a particular issue, there is still an important place for short, effective amicus briefs that say "we do" or "we do not" agree and here is why. Such briefs will not be repetitive if they focus upon unique policy concerns rather than bare opinions.

David B. Smallman is with Simpson Thacher & Bartlett in New York, New York.

- This article is an abridged and edited version of one that originally appeared on page 25 in Litigation, Winter 1999 (25:2).

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