March 06, 2012 Articles

Amicus Brief Writing for the Circuit Court: The Why and the How

While no one would encourage flooding the circuit courts with amicus briefs in run-of-the-mill appeals, there are reasons for increased amicus participation in atypical circuit-court appeals.

By Jill M. Przybylski and Brock A. Swartzle

Whereas amicus participation in the U.S. Supreme Court is abundant, amicus participation in the federal circuit courts of appeal is decidedly less so. That a majority of circuit-court cases present issues that impact only the immediate parties presumably explains this difference. And while no one would encourage flooding the circuit courts with amicus briefs in those run-of-the-mill appeals, there are room and reason for increased amicus participation in the “not so ordinary” circuit-court appeals.

In those latter cases, all of the same reasons for amicus participation in the Supreme Court apply with equal force to the circuit courts. An amicus can strengthen a party’s weak brief, stress the impact the court’s decision may have on third parties, provide policy arguments in support of a particular decision, add a more appealing advocate, and supply helpful materials beyond a party’s reach, such as technical or scientific data. See, e.g., Reagan Wm. Simpson & Mary Vasaly, The Amicus Brief: How to Write It and Use It Effectively 7–8 (3d ed. 2010).

But, beyond these shared reasons, there are additional reasons why amicus participation in the circuit courts may make particular sense. This article explores those additional reasons, as well as some differences between amicus briefs submitted to circuit courts and amicus briefs submitted to the Supreme Court.

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