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February 17, 2023

Amicus Filings: With Friends Like These, What Judges and Lawyers Need to Know About Amici Curiae

By: Jennifer Goodwin Shircliff

As an appellate advocate, I have represented my fair share of individuals as their appointed appellate counsel. But I have never participated in drafting an amicus brief, nor has one ever been filed in any of my appellate cases. In my current position as a relatively new Indiana Supreme Court Services Staff Attorney, our office is presented with amicus briefs somewhat regularly. Considering Indiana’s current litigation climate, I don’t expect that trend to slow down anytime soon. I was intrigued to attend this session so I could learn more about the role amicus briefs play in appellate litigation, glean tips to evaluate their strengths and weaknesses, and hear how courts utilize them to influence their thoughts and decision-making. The panel’s discussion provided answers to all these questions and more.

Justice David Thomson, of the New Mexico Supreme Court, led this interesting and informative conversation. He is widely experienced in appellate practice having served as a law clerk to United States District Judge Bruce D. Black, District of New Mexico and as a litigation attorney with the New Mexico Attorney General’s Office. The Honorable Jacqueline H. Nguyen joined the panel as a judge serving on the United States Court of Appeals for the Ninth Circuit. After President Obama’s nomination, Congress’s confirmation made her the first Asian American woman appointed to serve on a United States appeals court. Additionally, Michael Scodro, a partner in the Supreme Court & Appellate practice at Mayer Brown, LLP in Chicago, joined the panel. Mr. Scodro has argued dozens of cases before the United States Supreme Court, many state supreme courts, United States courts of appeals, and Illinois appellate courts.

The discussion focused on three objectives. The first objective, pre-drafting/pre-filing considerations, addressed things like court rules, entities asking parties to join as amici, and courts’ willingness to grant permission to file amicus briefs. The second objective, the actual amicus brief, highlighted various things that can make an entity a better friend to the court, including qualities that make a brief stand out or increase its value to a court. The third objective, court considerations, touched on courts’ general thoughts of and expectations for amicus briefs, and how courts review them.

Objective One: Pre-Drafting/Pre-Filing Considerations

The United States Supreme Court dedicates its lengthy and detailed Rule 37(1) to governing amicus curiae briefs filed before that Court. The Rule advises that such briefs may help the Court considerably if they “[bring] to the attention of the Court relevant matter not already brought to its attention by the parties.” But the Rule clarifies that an amicus brief falling short of this standard is burdensome and disfavored. The United States circuit courts of appeals and state appellate courts have their own specific rules that address amicus curiae briefs. Judge Nguyen explained the Ninth Circuit, for example, grants permission to file amicus briefs fairly generously. Although some briefs are more helpful than others, she said, the most helpful briefs come from amici that have particular expertise. Judge Nguyen explained that an entity should consider redundancy when framing the issues prior to drafting a brief because courts generally don’t consider redundancy helpful. Instead, she prefers to receive amicus briefs that raise legal issues the parties have not already addressed. As a practical matter, Mr. Scodro noted that he has seen a slight increase in the Seventh Circuit’s willingness to accept amicus briefs.

The panel discussed that entities joining together to file a single amicus brief is often a favorable and efficient way for groups to present their collective voice to the court. A group that can speak credibly to practical impacts of a particular ruling, Mr. Scodro said, can impact a particular ruling. To illustrate, he discussed a case from a few years ago in which a prison inmate challenged a prison beard-length regulation on free exercise grounds. The prison said the regulation was necessary for security reasons. A group of retired prison administrators filed an amicus brief agreeing with the inmate that allowing longer beards would actually benefit prison security. Mr. Scodro said that briefs from surprising sources taking a counterintuitive position can have a huge impact on a court, and there is a growing recognition for them throughout the bar. Judge Nguyen agreed. She explained that even if such amicus briefs don’t impact the final resolution, they can impact principles the court is wrestling with and provide wider context of things judges are unaware of or untrained in.

In a final note on this objective, the panel discussed whether courts find amicus briefs relating to motions for rehearing en banc helpful. Judge Nguyen said that although such briefs aren’t especially common, they can be helpful. They are most helpful, she said, when they discuss consequences of an issued opinion or how an opinion reached a wrong result. She said courts generally take a careful look at those amicus briefs. In addition to amicus briefs filed in support of a motion for rehearing en banc, amicus briefs are perhaps more helpful when filed at the petition for certiorari stage.

Objective Two: The Amicus Brief

The amicus brief serves as an entity’s direct communication to the court on the specific issue it wishes to address. Justice Thomson asked the panelists what they find to be most helpful in an amicus brief. Judge Nguyen began her explanation by noting the tremendous amount of reading judges do every day. So, the length of a brief is important to her. She also likes amicus briefs to add something new that the parties have not already addressed. She steers clear of amicus briefs that introduce facts the trial court did not resolve. Judge Nguyen explained that if she skims such a brief and sees it is going in that direction, she puts it aside and doesn’t finish it. Instead, she prefers to see a brief with a fresh perspective. Mr. Scodro agreed with Judge Nguyen emphasizing the bar should understand that “less is more” when it comes to amicus briefs. If six groups are going to say the same thing, for example, he recommends they join in filing one brief.

Justice Thomson asked Judge Nguyen to discuss her process for reviewing amicus briefs to ensure she doesn’t go beyond the record. She explained that she looks at amicus briefs separately from the record and from the parties’ briefs. That process allows her to make sure nothing in the amicus briefs becomes dispositive in the case. She also assigns clerks to read briefs who then flag entire briefs or arguments in briefs they find most helpful. Judge Nguyen will then read those briefs separately.

Entities filing amicus briefs need to know what information they can provide that would be most helpful to a court. But there are often roadblocks that prevent them from knowing what issues to address until after the parties’ briefing stage begins. Justice Thomson asked the panel to discuss any safeguards in place to help amicus drafters who find themselves in these circumstances. Mr. Scodro discussed that some jurisdictions do not allow amicus briefs at the certiorari stage. In that instance, appellate practitioners will note specific groups in their certiorari petition—a signal, if you will—whom they think would like to contribute to the briefing. Judge Nguyen added that, in this circumstance, policy arguments can be appropriately helpful in amicus briefs. Tying those policy arguments to some doctrinal basis—showing how the policy ties to the consequences of the case—is even more helpful.

Objective Three: Courts’ Considerations

Considering our nation’s litigation climate—and that of many states—reviewing the number of amicus briefs filed must seem like an insurmountable task for many courts. So, what is their process for getting through them? Judge Nguyen answered this question well. She often assigns the briefs to law clerks who set aside particular briefs for the judge to consider. Judge Nguyen at least skims them all, but she gives a closer read to the briefs her law clerks have flagged. When there is a large number of amicus briefs filed, Judge Nguyen frequently organizes them into categories with some categories receiving more attention than others depending on the issues. Her law clerks help her focus by highlighting pages or issues. Judge Nguyen explained the briefs that will get the most attention are the ones that present an issue better than the parties did or provide some additional context the parties haven’t already provided. She also said that, sometimes, courts will invite amicus briefs from entities that have not weighed in on a case, but from whom the court would like to hear.

Mr. Scodro addressed courts’ expectations for amicus briefs. He believes there is a sense among practitioners that there is no need to address more than one particular issue in an amicus brief. He believes practitioners generally try to help the party they are supporting and try to avoid filing unnecessary briefs. But what if an entity of interest approaches a party to the case wanting to submit an amicus brief that illustrates a point the party does not reach? Mr. Scodro noted this is a tricky circumstance. But he acknowledged that the amicus drafters have an obligation to their client in the same way the party’s attorneys are obligated to their own client. Ultimately, it comes down to representing different clients with different needs and expectations.

The information presented in this AJEI 2022 session was helpful and informative not only for appellate and amici curiae practitioners, but also for appellate court staff attorneys who read amicus briefing on a regular basis. When presented in an artful way, amici curiae briefs can provide valuable information to a court, highlighting interests or issues in a case that the parties may not be able to address in their chief arguments. With the number of high-profile cases currently before the US Supreme Court alone, there is definitely no shortage of amicus briefs for bourgeoning amicus practitioners to browse for ideas on form, function, analysis, and style. Jump on the Court’s website; have a look, and maybe consider becoming a friend of the court.

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Jennifer Goodwin Shircliff

Indiana Supreme Court Services

Jennifer Goodwin Shircliff is a Staff Attorney with Indiana Supreme Court Services. Prior to joining the Indiana Supreme Court, Jennifer practiced for twelve years as a trial and appellate public defender. She lives in Fishers, Indiana.