June 29, 2017

Amicus Briefs: How to Write Them, When to Ask for Them

Mary-Christine (M.C.) Sungaila

Friend of the court, or amicus curiae, briefs are often filed in appellate cases heard by the U.S. Supreme Court and state supreme courts, as well as intermediate courts of appeal. And there is considerable evidence that amicus briefs have influence: Appellate courts often cite to them in issuing their decisions. 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.

The California Supreme Court, for example, has recognized the “valuable role” amici play “precisely because they are nonparties who often have a different perspective from the principal litigants,” and acknowledged that their different perspectives “enrich the judicial decisionmaking process.” Connerly v. State Personnel Bd., 37 Cal. 4th 1169, 1177 (2006). The California Supreme Court and courts of appeal have also invited amicus participation in some cases. In Toyota Motor Corp. v. Super. Ct., 197 Cal. App. 4th 1107, 1130 (2011), the Second Appellate District was asked to determine whether California courts have the authority to require a corporate defendant’s foreign officers, directors, managing agents, or employees to appear for deposition in California. Recognizing that the case presented “important and novel questions,” the appellate court extended direct invitations to amicus organizations identified by the parties as being potentially interested in the outcome of the case and set up a post-argument amicus briefing schedule. (See January 21, 2011, docket entry, B225393; appellatecases.courtinfo.ca.gov.) The same division of the court of appeal invited “a number of governmental and private parties to submit amicus curiae briefs” in connection with another writ proceeding in 2008 involving “the legality of, and restraints upon, home schooling in California.” Jonathan L. v. Super. Ct., 165 Cal. App. 4th 1074, 1083 (2008).

What makes an amicus brief more effective? And how and when do you obtain one, if you represent a party on appeal?

When to Solicit Amicus Briefs

Amicus briefs are most appropriately and frequently filed in cases before the highest court of the state or the U.S. Supreme Court. Once a case has reached this level, it raises policy issues well beyond the concerns of the individual parties to the case, and the court tasked with deciding the case will want to know the broader implications of the case beyond the parties. Amici can provide helpful guidance to the court about the real-world impact of any decision.

Amicus briefs also may be helpful in a case that raises novel issues of law before an intermediate appellate court or a case as to which broader policy concerns are otherwise at issue. If the case impacts the individual parties and raises no broader issues, however, an amicus brief will not be helpful to the court (nor are you likely to convince an amicus organization to submit one).

What Makes an Amicus Brief Effective

When considering whether an amicus brief will be effective, first make sure it adds something to the case. If the brief just repeats arguments made by the parties and adds more pages of reading material for the judges and their clerks, it will not be well received.

Second, be mindful of the stage at which an amicus brief is being submitted. Amicus support at the petition or discretionary review stage is most helpful in demonstrating the widespread importance of the issue and the need for immediate guidance from the court. In order to convince a supreme court to grant review in a case, it is important to alert the court that groups well beyond the parties have an interest in the case and urgently need clarity and guidance on the law in that area. Amici can also help by further exploring a circuit split on an issue and describing the real-world impact of this continuing split.

At the merits stage, amici can do one of three things: amplify or supplement the legal and factual arguments of the parties or present an alternative argument not raised by any party; identify unintended consequences of a decision or rule on people or groups who are not parties to the case; and communicate the importance of the case by their very presence. In fulfilling these roles, amicus briefs often include additional legal citations, policy considerations, and social science data that may be helpful to the court.

Amicus briefs should be short (generally, 20 pages or less). Be sure to consult the court rules governing amicus briefs, and follow them scrupulously (including seeking consent of the parties or leave of court to file the brief).

The appellate experience and reputation of the counsel filing the brief and the amicus participants themselves are also important. An amicus party known for submitting high-quality, thoughtful, and helpful briefs, prepared by appellate counsel with a similar reputation, can catch a law clerk’s attention.

Finally, it is important to align the various amicus briefs in a case to tell the most effective story. Amicus briefs that intertwine but do not overlap with either the party’s brief or other amici can fill in aspects important to deciding the case. It is not helpful to have three amicus briefs that say exactly or nearly the same thing, even if it otherwise might be helpful to have each organization appear in the case. To prevent repetition, counsel for the party may suggest areas for potential amici to brief at the outset and keep track of which amicus plans to argue which points. If there appears to be potential for repetition, party counsel can alert other amici before the briefs have been drafted. If there is no way to avoid overlap, amici can consider jointly filing a brief.

How to Solicit Amicus Briefs

How can you convince an organization to file a brief in support of your client’s position? Here are some tips.

Do your homework before approaching an organization. Determine what kinds of cases the group you are soliciting has filed in before, and check the organization’s website for the relevant forms to submit and procedures to follow in requesting amicus support. The American Bar Association (ABA), for example, requires that an amicus request be made to the organization-wide Standing Committee on Amicus Curiae Briefs by a section or division of the ABA (not an individual) and that the ABA file a brief only in matters that implicate an existing ABA policy. Some organizations will file more readily at the petition stage or in state court; others rarely file at the petition stage and generally only in the U.S. Supreme Court. Still other organizations have priority issue areas in which they tend to focus their amicus efforts.

Once you have identified potential amicus organizations to solicit, prepare a two- or three-page memo describing the importance of the case, the pertinent deadlines, the issues raised, the arguments of both sides as to those issues, and how an amicus can add to the discussion, together with a copy of the underlying opinion and petition sought to be supported. In your memo, be sure to explain how the issues in your case reverberate well beyond the case at hand. Submit an amicus request at least three weeks before an amicus brief would be due.

Keep each organization in the loop about other potential amici. Although amicus-filing organizations have their own network and often will confer with sister organizations about their decision to file in a case, it is better for the party to advise different potential amici about other groups that already have committed to filing an amicus brief in the case.

Be careful not to compromise the independence of amici. Many courts, including the U.S. Supreme Court, require amicus counsel to assert in the brief that the brief was neither prepared by nor paid for by anyone other than the named amicus and its counsel. Having a party pay for or ghostwrite an amicus brief compromises its independence and its influence with the appellate court and may violate court rules.

Amicus Brief Introductions

Amicus briefs should not repeat arguments made in the party briefs. But how do you reflect the scope of coverage in an amicus brief at the outset? One way is to carefully carve out the amicus arguments from those of the party supported in the introduction to the brief. A few examples:

  • In the merits briefing, the defendant has already explained why the factors in Rowland v. Christian 69 Cal.2d 108 (1968) do not warrant extending a duty to nonemployee plaintiffs in take-home exposure asbestos cases such as this. We do not repeat these arguments. Rather, we describe how two additional policy concerns centered on the burden on defendants and the consequences to the community from increased asbestos litigation and corresponding reduction in access to the courts, particularly in light of ongoing budget cuts, further militate against expanding duties to new categories of plaintiffs in asbestos cases.
  • As the opening brief on the merits explains, Plaintiff worked for Supreme Castings & Pattern, Inc. (Supreme), an industrial foundry that made metal parts. After Plaintiff developed interstitial pulmonary fibrosis, he and his wife sued several companies, including Alcoa, that supplied the raw materials used by the foundry. They contended that when the aluminum provided by Alcoa was melted in furnaces, the molten aluminum generated hazardous metal fumes. Alcoa Inc.’s briefs on the merits (joined in by the other defendants and respondents) explain that “as the supplier of multi-use raw materials, Alcoa is not responsible for the injuries allegedly caused by the plaintiffs employer’s own manufacturing process” under two related, but independent doctrines: the raw materials/component parts doctrine and the sophisticated purchaser doctrine. This amici brief explains why this Court should, for the same reasons it has adopted the sophisticated user doctrine, adopt the sophisticated purchaser doctrine as an exception to a supplier’s general duty to warn, which would preclude liability in this case.
  • Petitioners have extensively briefed the relevant legislative history and statutes and explained how the Legislature has limited to witnesses residing within California the California courts’ power to compel the attendance of individual witnesses at deposition or trial in this state. We do not repeat those arguments. Instead, amici show that (1) California courts similarly lack inherent authority to compel nonresidents to attend depositions within state borders and (2) even if the trial court here did have discretionary authority under Code of Civil Procedure section 2025.260 to order Petitioners’ individual Japanese employees to attend depositions in California, that discretion must be exercised consistent with principles of international comity as well as the factors enumerated in section 2025.260 itself.

Conclusion

Amicus briefs can be helpful to appellate courts in deciding cases of widespread importance. If you are mindful of the most effective ways to craft and solicit amicus support, you will have another means of persuading the court on behalf of your client.

Mary-Christine (M.C.) Sungaila

Mary-Christine (M.C.) Sungaila (mc.sungaila@haynesboone.com), a Haynes and Boone, LLP, partner in California, has authored nearly 100 amicus briefs in appellate courts. She currently chairs the International Association of Defense Counsel’s Amicus Curiae Committee.