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October 17, 2022 Council of Appellate Lawyers

Meeting Their Needs: How to Be the Best Possible Friend of the Court, the Party you’re Supporting, and the Clients you Represent

By Chris Schandevel, Ashburn, VA

“What can I possibly say that’s important enough to be worth the Court’s time, but not so important that the party I’m supporting is already saying it?” When I sat down to write my very first amicus curiae brief, that question stumped me for a long time. I finally came up with what I thought was a semi-decent answer and started writing. But I could never quite shake the feeling that I was wasting everyone’s time—my own included.

It turns out I was asking the wrong question. And when you start with the wrong question, you’ll almost always get the wrong answer. More than ten amicus briefs filed in the U.S. Supreme Court, federal courts of appeals, and state supreme courts later, I now find myself asking three very different questions when I sit down to write an amicus brief:

First, what does the court need to decide this case that it’s not getting from the parties?
Second, what does the party I’m supporting need to win this case that it doesn’t already have?
And third, what does my client need the court to say and do in this case to advance my client’s interests?

I’m convinced that the most effective amicus writers answer all three of these questions before they ever put pen to paper—or fingertips to keyboard. And as my own experience has proven, the results speak for themselves.

Meeting the Court’s Needs

“Know your audience.” That’s good advice any time you’re doing written or oral advocacy. And when you’re writing a legal brief—even an amicus brief—your main audience is the court. Sure, you may have other audiences—your clients, the parties, and sometimes even the general public—but you’ll want to treat the court as your primary audience. If you don’t, the court will figure out that you’re writing mainly for someone else and quickly move on to the next brief in the stack.

The surest sign you’re writing for someone else is if you find yourself writing a “me-too” brief. A me-too brief is one that just regurgitates the main arguments made by the party you’re supporting. That can happen by accident—maybe you thought you were covering new content, but you failed to confirm that with the party you’re supporting. More often, though, a me-too brief tells the judges and law clerks reading it that it’s mainly written for someone else—whether that be a client, the parties, the public, or the authoring attorney’s own ego. No judge wants to read the same arguments twice. And that’s true no matter how much better of a writer you think you are than the party’s attorneys.

That said, don’t blindly assume that the party you’re supporting will make all the right arguments in its brief. If you do, you’ll miss out on the best opportunities to impact the outcome of a case. As an appellate litigator I’ve read—okay skimmed—countless amicus briefs. By all appearances, most attorneys start the amicus drafting process with only a general sense of what the court said below, what the parties are saying on appeal, and what they’d like to say themselves. Don’t be most attorneys.

Instead, start by approaching the case as if it’s your own. Read the decision being appealed and form your own opinions about the best lines of attack or defense. Maybe even do a little research. Then read the parties’ briefs, either from the trial court or on appeal if they’ve already filed them. That way you’ll be in the best position to judge what issues and arguments the parties might be missing.

For example, I recently filed an amicus brief on behalf of Euthanasia Prevention Coalition USA in the Massachusetts Supreme Judicial Court in a case challenging Massachusetts’s common-law prohibition on physician-assisted suicide. The Attorney General was defending the prohibition. Our initial plan was to file a brief focusing on policy arguments while leaving the legal arguments to her. But as I read the decision below and the Attorney General’s brief, I realized the brief did not include what we thought was the strongest possible argument in response to the claim that the Massachusetts Constitution includes a substantive-due-process right to physician-assisted suicide. So we scrapped our initial plans for our brief and made the argument ourselves.

Citing Massachusetts caselaw, we argued that the test for identifying a substantive-due-process right, announced by the Supreme Court of the United States in Washington v. Glucksberg, remains the correct test under the state constitution. Then we explained how the test works, summarized Massachusetts history and tradition, and applied the test. And since neither of the parties had done any of that, we filed a motion for leave to participate at oral argument.

To our delight, the court granted our motion two days before argument. And even though we’d only asked for five minutes of argument time, the justices had so many questions for us on the topic we’d briefed that I ended up spending a full twenty-one minutes at the lectern. At the time of this publication, we’re still waiting for an opinion in that case. But the fact that the court allowed me to participate at oral argument seems to indicate the court thought our brief added important value.

Your amicus briefs are more likely to have the same effect if you take a similar approach. Read the decision below, form your own opinions about the case, then read the parties’ briefs and ask yourself, “What else does the Court need to know to decide the case that it’s not getting from the parties?” If you can identify and meet that need effectively, the court, your client, and the party you’re supporting will all be grateful for it.

Meeting the Party’s Needs

“Do unto others as you would have them do unto you.” Those are great words to live by. And when it comes to amicus briefs, they’re great words to write by, too. If you’ve decided to file an amicus brief in support of one of the parties in a case, it means you’ve determined that a decision in that party’s favor will be in your client’s best interest. So you’ll want to do everything in your power to help the party secure that result. And you’ll want to avoid saying anything that might hurt their case. If the shoe were on the other foot (and if you’re an appellate lawyer, it will be), you’d want them to do the same “unto you.”

So how can you best meet the needs of the party you’re supporting? Here are three quick tips:

  1. Ask their attorneys how you can best help them win their case.

    Even if you take my advice and read the decision below and form your own opinions about a case first, the reality is the attorneys who’ve been litigating the case from the start will almost certainly know the case better than you. And that means they should have a well-informed view on how you can be most helpful to their cause. All you have to do is ask.

    That’s not to say you shouldn’t form your own thoughts about the case and your brief before you reach out to the party’s attorneys. Nor is it to say you have to march in lockstep with whatever they ask you to address in your brief. Again, your main audience is the court. And your main responsibility is to your client. The party’s attorneys will get that. But you’ll still want to approach them with enough humility to be willing to modify your approach—or even change course altogether—based on their view of how you can be most helpful.
  2. Use your brief to fill in the gaps in the party’s briefing that you’re in the best position to fill.

    Page limits and deadlines. I’ll confess to having a love-hate relationship with both. I love them because they force me to be more concise and efficient than I would be if left to my own devices. I hate them because, well, I happen to like my own devices. Even when I’m at my very best, though, I often find myself wishing for more time to research, more room to write, or some combination of the two. And that’s especially true when I’m representing one of the main parties in the case.

    So I know how important it can be to have good amicus support to help fill in those inevitable gaps in the briefing. And when I’m the one offering that support, I always try to identify the gaps that I’m in the best position to fill.

    For example, I recently filed an amicus brief on behalf of sixty pro-life state legislators in the Iowa Supreme Court in a case involving Planned Parenthood’s challenge to a twenty-four-hour-waiting-period requirement. The State was asking the Iowa Supreme Court to overturn its state version of Roe v. Wade, a result we also wanted. But before the State could address that question in its brief, it first had to address two major threshold issues—leaving little room for the constitutional question. So we devoted our entire brief to that question. And after we filed our brief, the State’s attorneys agreed to share argument time with me at oral argument so I could make the case for overturning that prior decision in person.

    Ultimately, in an opinion issued one week before the Supreme Court of the United States’ decision in Dobbs v. Jackson Women’s Health, the Iowa Supreme Court agreed to overturn its prior decision that had found a right to an abortion under the state constitution. And given how much we had contributed toward achieving that result as an amicus, the Governor retained our attorneys to help represent the State on remand.
  3. Invite feedback from the party’s attorneys before you file your brief.

    This third tip is easy enough to execute, but just as easy to overlook. A lot can happen between your initial conversation with the attorneys for the party you’re supporting and the completion of the first draft of your brief. You’ll likely have added new issues, arguments, and authorities. And if the party you’re supporting hasn’t filed its brief yet, the party’s attorneys may have developed new issues and arguments themselves. So when you’ve finished your first draft, it’s worth sharing it and inviting feedback from the attorneys for the party you’re supporting.

    You’ll of course want to avoid having the party’s attorneys write any part of your brief. See, e.g., Sup. Ct. R. 37(6) (requiring amici to disclose “whether counsel for a party authored the brief in whole or in part”); Fed. R. App. P. 29(a)(4)(E)(i) (same). But they can still check for accuracy and for consistency with their framing of the case and the arguments. And they may identify new substantive gaps in their own briefing that you still have space to fill. Not everyone will take you up on your offer. But those who do will appreciate your going the extra mile to be as supportive as possible.

Meeting Your Client’s Needs

Last but certainly not least, when you sit down to start writing an amicus brief, you’ll want to think about who your client is and how you can best advance their interests in the case. When I was growing up, my church youth minister used to remind me and my friends to “remember who you are and whose you are” any time we went out in public. That was mainly just a reminder not to embarrass ourselves or our parents. And certainly, as attorneys, we don’t want to embarrass our clients. But there’s a deeper lesson there. Even when you don’t represent one of the main parties in a case, you should still remember “who you are and whose you are,” meaning who you represent. And that should inform every decision you make as you write your amicus brief, including what you choose to write about.

For me, I always try to ask myself what my client needs the court to do or say to best advance my client’s interests. And if the party I’m supporting isn’t asking the court to go that far or to address the specific issues my client needs addressed, I make that my top priority.

For example, in Fulton v. City of Philadelphia, my colleagues and I filed an amicus brief asking the Supreme Court of the United States to refortify the strict-scrutiny standard for free-exercise cases. In the brief, we represented two religious adoption and foster-care providers that we also represented in separate cases similar to Fulton. We knew from experience that courts often watered down the strict-scrutiny standard in free-exercise cases, especially the compelling-state-interest prong. So, citing three of the Supreme Court’s prior cases, we asked the Court to reiterate that the state can’t assert compelling interests “at a high level of generality” to justify a free-exercise violation.

Citing the same three cases, the Supreme Court agreed, writing in its opinion that the City had stated its objectives “at a high level of generality,” and that “the First Amendment demands a more precise analysis.” In fact, pages 13–14 in the Court’s slip opinion so closely mirror pages 13–14 in our amicus brief that it seems certain our brief had an impact. And that meant a big win for our clients over and above the outcome of the case itself. All because we made meeting their needs our top priority.

I’ve come a long way since I wrote my very first amicus brief. And I still have a lot to learn. But I’ve improved my work product significantly by asking myself three simple questions every time I write an amicus brief: How can I best help the court? How can I best help the party I’m supporting? And how can I best help my clients? These questions have helped me hone my amicus advocacy, and I’m confident you can achieve the same results yourself. Happy drafting!

Chris Schandevel

Senior Counsel, Alliance Defending Freedom

Chris Schandevel serves as senior counsel on Alliance Defending Freedom’s Appellate Advocacy Team. In that role, he represents clients in state and federal appellate courts across the country, including at the U.S. Supreme Court. Before joining ADF, he served as an assistant attorney general in the Criminal Appeals Section at the Office of the Attorney General of Virginia, briefing and arguing more than 75 appeals in the state supreme court and court of appeals.

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