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February 17, 2023

The Dos and Don’ts of Crafting a Strategic and Helpful Amicus Brief

By: Cathy S. Trent-Vilim

Appellate courts are receiving substantially more amicus briefs than in years prior. For example, before issuing its landmark ruling in Dobbs v. Jackson Women’s Health, the U.S. Supreme Court received one hundred and forty (140) amicus briefs. But more is not always better. That was the overarching theme of the panelists who participated in the AJEI panel, “Amicus Filings: With Friends Like These . . . What Judges and Lawyers Need to Know about Amici Curaie.”  Justice David Thomson, of the New Mexico Supreme Court, moderated the panel of experts, comprised of the Honorable Jacqueline Nguyen of the Ninth Circuit Court of Appeals and Michael Scodro from the Chicago office of Mayer Brown.

Amicus briefs, or ‘friend of the court’ briefs, can and have played an important role in our judicial system. Given the increase in submissions, it is perhaps not surprising that the courts are citing amicus briefs with greater frequency. For example, in its more recent term, approximately 65 percent of signed opinions referenced at least one amicus brief. 

If you want to potentially join the ranks of those who have had their amicus briefs cited in an opinion, below are some tips from the panelists on factors you should consider when deciding whether to file an amicus brief; and, if so, how to craft your brief in a way that will not only get the court’s attention, but also serve the brief’s fundamental purpose: helping the court.

First, let’s start with the don’ts. An unhelpful amicus brief often suffers from one or more of the following flaws:

  • Repetitive or duplicative. As noted, more is not better. An amicus brief that simply repeats the parties’ arguments, or the arguments of other amici, does nothing to move the ball and, at best, may get a cursory review by the panel judges. Worse still, inundating the court with repetitive briefs could lead to limiting rule changes. In fact, a 2004 study tentatively concluded that the states with the most restrictive amicus rules created the restrictions in response to high-volume amicus curiae participation.

    Avoiding repetition can be difficult when there are multiple groups who want to contribute amicus briefs on a particular case. In that circumstance, it is likely better to have them file a single, consolidated brief instead of individual, repetitive briefs.

    Before doing so, however, consider whether a collective brief could trigger a possible conflict for one of the panel judges. If so, the court will likely opt to deny a motion for leave to file an amicus brief to avoid conflicting out the panel member. It may be better to have a couple of strategically-coordinated amicus briefs rather than no amicus brief at all.
  • Legal theories not addressed by the trial court. It is not uncommon for parties to pare down the legal arguments they made before the trial court and those they raise in the appellate court. A helpful amicus brief may discuss legal arguments omitted from the merit briefs. Helpful though that may be, it is not helpful for an amicus brief to discuss legal arguments not raised to the trial court below.  Since appellate courts are generally limited to considering only those arguments raised below, an amicus brief focused on legal arguments not addressed to or decided by the lower court is largely a waste of the court’s time.
  • Non-adjudicated facts. Amicus briefs that fail to maintain fidelity to the record, or go beyond the facts adjudicated by the lower court, are not helpful. Since appellate courts are limited to the record on appeal, briefs that go beyond the record do not assist the court. As a result, the judges may not even read the brief, leaving that task to their clerks. The court may also be hesitant to put much stock in briefs that cite statistics. Not only is their source potentially unknown, but the statistics likely have not been tested by the adversarial process. For this reason, think twice before using them in your amicus brief.
  • Arguments directed at the legislature. The role of an appellate court is to decide and apply the law. It does not legislate. Given the court’s role, an amicus brief comprised of legal arguments more properly directed at the legislature, and not the court, is not helpful to the court.
  • Amicus pursuing their own agenda. Certainly, amici file briefs to further their constituents’ interests. Self-interested though they may be, such briefs still serve an important purpose. However, amici who file briefs solely to energize their base, or to demonstrate how the organization is providing a benefit to its members, do little to aid the court.
  • Me too or counting head briefs. Amicus briefs that simply join in an existing brief are a waste of time, energy and financial resources. It is better to file a single, consolidated brief on behalf of all like-minded groups.

So, what do compelling and truly helpful amici briefs do? They fill gaps. Keep in mind that when parties are drafting and submitting their briefs, their primary emphasis is appropriately on the facts, the record below, and the law.  While these factors ultimately drive the outcome of an appeal, there are often other important considerations the appellate court may want to consider before issuing its opinion. Even if these other considerations do not necessarily affect or change the outcome, they may become central to the limiting principles the court incorporates into its decision. When limitations on the parties’ briefs prevent them from fully vetting these other considerations, a worthwhile (and genuinely helpful) amicus brief will step in to fill these gaps, including:

  • Context. An amicus brief may provide context to the legal issues. For example, in a case raising significant constitutional questions, a detailed historical accounting of the events leading up to a particular constitutional amendment may permit the court to better interpret the drafter’s intent when selecting certain language. Therefore, an amicus brief submitted by a well-respected academic or historian could prove especially beneficial to the court.
  • Expertise. Amicus briefs filed on behalf of entities, groups or governmental agencies with expertise in a particular area are also beneficial. In a juvenile court case considering the propriety of a certain criminal penalty, for example, an amicus brief filed on behalf of a medical association may give the court a better understanding of a minor’s psychological and emotional development. A governmental agency, on the other hand, may be able to provide insight when interpreting a governing statute. These briefs can be so valuable that the court will reach out to the agency and invite it to file an amicus brief.
  • Social science evidence. Some of the most helpful amicus briefs for appellate judges are those that provide social science evidence
  • Public interest and policy considerations. Amici can enlighten the court as to the public interest as well as public policy considerations. For example, in King v. Burwell, 576 U.S. 473 (2015), the Supreme Court cited amici several times, most often to explain how the public interest had been affected by certain actions.
  • Unintended consequences. Judicial decisions do not exist in a vacuum. Nor are the implications of a decision only felt by the parties. Sometimes even well-meaning judges can draft opinions that have unintended negative consequences on nonparties. Amicus briefs can bring perspective to the bench by demonstrating the potential reach or ramifications of the court’s decisions on others. One panelist discussed an amicus brief she found to be particularly valuable in a case involving a music copyright. The brief explained how the court’s ruling one way or another could broadly impact others in the music industry. Without the amicus brief, the judge was unaware of the breadth of the case’s reach on others who were not parties in the case.
  • Superior Legal Analysis. Sometimes an amicus brief’s most important contribution is providing a superior legal analysis of the issues and law compared to what the parties have given the court.

Regardless of which gap an amicus brief is filling, the brief should tie its arguments to the legal doctrines before the court. Those doctrines are, after all, what will guide the court in its final decision.

Although amicus briefs are expected during the initial phase of an appeal, they can serve a more beneficial role on a motion for rehearing. Until the court issues its opinion, the parties may not understand that there is a wider audience that could be interested in, or impacted by, the decision in their case. On rehearing, they may solicit amicus to get involved to explain how or why the court’s initial opinion was wrong. Amicus may also explain any unintended consequences flowing from the court’s decision.

Finally, the most intriguing – and perhaps convincing – amicus briefs are ones that advocate a position one would not necessarily expect at first blush. Judge Nguyen gave an example where a group representing retired prison administrators and wardens filed an amicus brief in a case where inmates were challenging the prison’s restrictions on beard length, claiming it infringed the free exercise of their religion. Given their prior service as prison administrators, the court expected the amicus brief to argue that limiting beard length improved safety. In fact, amicus argued allowing longer beards – and not restricting them – improved safety because it would make the inmates happier. The court gave the brief substantial weight because the administrators’ position was so unexpected.

When done strategically, amicus briefs can play a vital role in the appellate process; and if the brief you submit is also especially helpful and well-written, you may find yourself in the coveted position of having the appellate court cite your brief in its opinion.

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    Cathy S. Trent-Vilim

    Lamson, Dugan and Murray

    Cathy S. Trent-Vilim is a partner at Lamson, Dugan and Murray in Omaha, where she specializes in appellate practice, commercial litigation and professional negligence. She received her Bachelor of Arts degree in Political Science from Loyola Marymount University, her Master of Arts degree in Political Science from California State University - Long Beach, and her Juris Doctor degree from the University of Nebraska College of Law. While at Nebraska, she was an Executive Editor for the Nebraska Law Review and was elected to the Order of the Coif. Since 2017, Ms. Trent-Vilim has been selected by her peers to be included in the Best Lawyers in America in the area of Commercial Litigation.