January 04, 2017 Articles

Amicus Briefs on Appeal: A Practical Guide to Success

By Kelli Sager and Terri Keville

In our increasingly complex and interconnected world, the impact of a published appellate decision often extends far beyond the interests of the parties to the action. Amicus curiae briefs can alert appellate jurists to the potential for such effects and educate them about the broader facts and issues in ways the parties cannot. Trade associations and other coalitions of nonparties regularly fill this role in significant cases, so there are many opportunities for counsel who develop and offer expertise in amicus advocacy on behalf of particular industries or groups.

Not all amicus work is paid (and it may not be lucrative even if paid), but amicus practice can be tremendously rewarding professionally in other ways. It’s a great feeling to know you have helped shape the law in a way that benefits your clients and their constituencies, and many times benefits the general public as well. This article discusses approaches for doing amicus work effectively.

Gain Experience
Early in your career, when you are less likely to get hired to prepare an amicus brief, there are still opportunities to do appellate work by volunteering to write an amicus brief pro bono for a public interest organization in a case that is of particular importance to that group. An initial opportunity to write for one organization can be parlayed into a brief for multiple nonprofits that are interested in the same issue.

If you work in a large firm, make your interest in doing amicus work known to the partners who are already doing this kind of work or who are well-known in specific industries or practice areas where they are likely to hear about amicus opportunities. If your firm has an appellate practice group, join it and participate actively.

Make Your Expertise Known
Lawyers who are known for having expertise in a particular area frequently are approached by nonprofits or paying clients who are interested in participating in appeals as amici. It is never too early to start developing expertise in a given area:

• Speak and write regularly in your substantive area of expertise. Literally hundreds of organizations are constantly looking for panelists and authors.

• Connect and establish relationships with trade association counsel so they’ll think of you when amicus opportunities arise.

• Network with other lawyers, particularly appellate and industry specialists, who might be looking for amicus support in future cases.

And, of course, winning cases on appeal that result in published opinions provides credibility and results in recognition.

Identify Amici
If you become aware of an important case in your subject area where amicus contributions would be helpful, but you know the principal trade association already has chosen other amicus counsel, that should not dissuade you. Cases that are likely to make law in a particular area often have several groups of amici on each side. Although companies in that industry and trade associations provide one natural group of potential amici, valuable insights often are presented by amici that may not be as obvious at first glance: for example, a group of academics or practitioners in the relevant field, or individuals who are among the group that may be affected by a particular ruling. The more participants, and the more obvious their connection to the particular topic, the more likely the court will be to find your submission interesting. Often your first amicus clients can help you identify others.

Choose Your Issues Carefully
Once you have an amicus engagement, consider carefully what issues to address in your brief. There is little interest or point in submitting “me too” briefs that merely rehash the same arguments offered by the parties. Unless an important point has been missed by the party whose side your group is supporting, the most valuable amicus briefs are ones that go beyond the particular facts of a case or the record, and assist the court in understanding the broader implications of a particular case.

If you know there will be more than one amicus brief on your side of a case, it also is important to coordinate with the other amicus counsel so everything significant is covered, and any repetition is minimized. Even if you are the lone amicus, don’t try to do too much. Limit yourself to the most compelling issues and information, succinctly conveyed.

Add Value, Not Just Words
Appellate jurists and their clerks and research attorneys are extremely busy, so it’s unlikely that an amicus brief will be read completely or considered if the reader can’t discern from the outset that it will be valuable. Your table of contents and summary of argument should make clear how the brief is relevant to the wider context and potential real-world effects of its decision. Tell a story. Connect with the reader. Marshal the facts. Explain why the court will do justice and serve the public by reaching the result you’re advocating.

A recent decision from the Ninth Circuit illustrates the importance an amicus brief may have. In Sarver v. Chartier, 813 F.3d 891, 897 (9th Cir. 2016), a right of publicity case arising from the Oscar-winning film The Hurt Locker, the parties argued about the “transformative use” test applied by the district court, with each side pointing to cases supporting its viewpoint on whether the film was sufficiently “transformative” to survive the claim. Instead of addressing this issue, an amici brief submitted by the Motion Picture Association of America and Entertainment Merchants Association took a step back from the tests argued by the parties in cases involving expressive works. The amici brief argued that, as a fundamental threshold constitutional issue, the court should find that right of publicity claims based on expressive works, like films, are content-based restrictions on First Amendment rights, which require application of the constitutional “strict scrutiny” test. The circuit panel agreed, and adopted the rationale presented by the amici in holding that the plaintiff’s claim was barred by the First Amendment because he could not show the requisite “compelling interest” needed to overcome the defendants’ constitutional rights. Id. at 904–05. By adopting the rationale presented in the amici brief, the panel avoided addressing a potential conflict with another circuit panel in how the “transformative use” test should be applied. Id. at 904 n.6 (citing In re Student-Athlete Name & Likeness Licensing Litig. (Keller), 724 F.3d 1268 (9th Cir. 2013)).

In another important ruling, the Ninth Circuit held en banc that a panel decision requiring Google to remove all postings of a controversial film, based on an alleged “copyright” infringement in the performance of one actress in the film, was an unconstitutional prior restraint. Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc). The court expressly thanked the many amici:

In connection with en banc proceedings, we received thirteen amicus briefs from a broad array of interested parties, including copyright and Internet law scholars; content, Internet service, and technology providers; actors; media organizations; and nonprofit groups. The briefs were helpful to our understanding of the implications of this case from various points of view. We thank amici for their participation.

Id. at 739 n.3. Similarly, in Medical Staff of Sharp Memorial Hospital v. Superior Court (Pancoast), 16 Cal. Rptr. 3d 769, 775 (Ct. App. 2004), a hospital association’s amicus brief educated the court about the risks an impaired physician poses. Persuaded, the appellate court quoted the amicus brief at length. This decision resulted from a writ petition, 95 percent of which are summarily denied in California, but the amicus submission helped the hospital to obtain relief against those long odds.

And, when the California Supreme Court held that California’s anti-SLAPP statute applies to hospital medical staff peer review proceedings, it too relied on the amicus brief:

As noted in the joint amicus curiae brief . . . , membership on a hospital’s peer review committee is voluntary and unpaid, and many physicians are reluctant to join peer review committees so as to avoid sitting in judgment of their peers. To hold . . . that hospital peer review proceedings are not “official proceeding[s] authorized by law” . . . would further discourage participation in peer review . . . .

Kibler v. N. Inyo Cnty. Local Hosp. Dist., 138 P.3d 193, 197 (Cal. 2006). Notably, the California Supreme Court in Kibler also discussed at length—and rejected—all of the amicus arguments made by the California Medical Association, which reinforces the importance of picking one’s amicus battles and arguments very carefully.

Follow the Rules
Finally, because courts have discretion to accept or reject an application to file an amicus brief, it is doubly important that you follow the court’s rules in submitting your brief and your application for permission to have it filed. Although rules vary in different jurisdictions, most appellate courts require prospective amici to ask the parties if they will consent to have the amicus brief filed; a party’s refusal does not mean that the court will not grant the application, but having the consent of the parties removes a hurdle. (And the parties typically consent.) Timeliness also is key; a late-filed amicus brief is unlikely to be accepted by the court. And, as with every brief, attorneys should take care to confine themselves to the word limits permitted for amicus briefs.

Conclusion
An active amicus practice is an excellent way to support your clients, influence the law, and enhance your own and your firm’s reputations. Taking the steps described above should put you on the road to success.

Keywords: litigation, woman advocate, amicus curiae, trade associations, amicus briefs, appeals, pro bono, public interest, nonprofits, networking, professional development, young lawyers, friend of the court, client development


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