A significant part of my practice entails writing friend-of-the-court, or amicus curiae, briefs, which are frequently filed in cases heard by the U.S. Supreme Court and state supreme courts. I have also led and served on case-selection committees for various international and national bar association amicus committees and have solicited amicus support for clients who are parties to appellate proceedings.
In general, organizations seek to participate as an amicus in cases that may have a significant impact on their membership or in cases that could determine an issue of institutional importance to their industry or those whom they serve. They also file amicus briefs to share a unique or deep set of experiences or expertise that the court may benefit from considering in crafting a legal rule or standard. Are such briefs helpful to appellate courts?
There is considerable evidence that amicus briefs influence court decisions—when done well. First, their prevalence demonstrates their perceived influence. Amicus briefs are regularly filed in more than 90 percent of civil cases before the U.S. Supreme Court and, according to my own empirical study in California (where I center my practice), in nearly 60 percent of civil cases before the California Supreme Court.
What is more, appellate courts often cite them in issuing their decisions. One study, for example, showed that between 1986 and 1995, the U.S. Supreme Court cited at least one amicus brief by name in 15 percent of its opinions and referred to at least one amicus brief (without necessarily citing or naming it) in 37 percent of its opinions. Another study revealed that state supreme courts acknowledged or cited amicus briefs in 31 percent of cases sampled and discussed arguments made in amicus briefs in 82 percent of them.
Of course, courts value amicus briefs’ contributions even when they do not incorporate them into their written decisions. The California Supreme Court, for example, in Connerly v. State Personnel Board recognized the “valuable role” amici play “precisely because they are nonparties who often have a different perspective from the principal litigants,” and the court acknowledged that their different perspectives “enrich the judicial decisionmaking process.”
Appellate courts view amicus briefs as so valuable that they sometimes directly ask for their submission. The California Court of Appeal’s Second Appellate District, for example, invited a number of governmental and private parties to submit amicus briefs in a writ proceeding in which the court was considering the legality of, and restraints on, home schooling in California. In another case, that same court recognized the importance and novelty of the question of whether California courts have the authority to require a corporate defendant’s foreign officers, directors, managing agents, or employees to appear for deposition in California, and after oral argument, the court directly invited amicus organizations identified by the parties as being potentially interested in the outcome of the case to file briefs in the case and set up a post-argument amicus briefing schedule.
The high-stakes nature of the cases in which amicus briefs are submitted enhances their profile as well. Amicus briefs—the useful ones, anyway—are submitted in cases that raise novel issues of law or that otherwise involve broader policy concerns. They are most appropriately and frequently filed in cases before the highest court of the state or the U.S. Supreme Court because, once a case has reached this level, it raises policy issues well beyond the concerns of individual parties to the case. As a result, amicus briefs assist the court tasked with deciding the case in understanding the broader implications of the case beyond the parties.
Given all this, an amicus brief has the potential to become a prized resource to a court. But to have influence in an individual case, it must be effective. What follows are my perspectives and tips on writing persuasive amicus briefs, grounded in nearly 30 years of experience in writing and soliciting amicus briefs and reviewing amicus brief requests.
For an amicus brief to be effective, it first must add something to the case. If the brief just repeats arguments made by the parties and adds more pages of reading material for the judges and their clerks, it will not be well received. An attorney’s first resource in deciding what role the brief will serve is the client. The client has a reason for wanting to file an amicus brief in the case to begin with; find out what that is and how the client’s or its members’ concerns are implicated by a decision in the case. Research the policy positions and industry data the organization already has or similar cases its members have been involved in. Consult with counsel for the party whose position you are supporting to hear what arguments they would like additional support for, or which arguments other amici are planning to make, so that you do not duplicate another amicus brief.
Second, an amicus brief should be tailored to the stage of the case at which the brief is being submitted. Amicus support at the petition or discretionary review stage is most helpful in demonstrating the widespread importance of the issue and the need for immediate guidance from the court. To convince a court to grant review in a case, it is important to alert the court that groups well beyond the parties have an interest in the case and urgently need clarity and guidance on the law in that area. Amici can also help explore a circuit split on an issue and describe the real-world impact of the continuing split.
At the merits stage, amici can do one or more of three things: amplify or supplement the legal and factual arguments of the parties or present an alternative argument not raised by a party, identify unintended consequences of a decision or rule on people or groups who are not parties to the case, and communicate the importance of the case by their very presence. In fulfilling these roles, amicus briefs often present additional legal citations, policy considerations, and social science data that may be helpful to the court.
The appellate experience and reputation of the counsel filing the brief and the amicus participants themselves are also important. An amicus party known for submitting high-quality, thoughtful, and helpful briefs, prepared by appellate counsel with a similar reputation, can catch a law clerk’s attention.
Third, it is important to ensure that the various amicus briefs in a case collectively tell the most effective story. Amicus briefs that intertwine but do not overlap with either the party’s brief or other amici can fill in aspects important to deciding the case. It is not helpful to have three amicus briefs that say exactly the same thing, even if it otherwise might be helpful to have each organization appear in the case. To prevent repetition, counsel for the party may suggest areas for potential amici to brief at the outset and keep track of which amicus plans to argue which points. If there appears to be potential for repetition, party counsel can alert amici before the briefs have been drafted. If there is no way to avoid overlap, amici can consider jointly filing a brief.
Finally, it is also helpful to signal early on in an amicus brief how the subject matter of the amicus brief fits with the party’s brief. In the case involving California courts’ power to require a corporate defendant’s foreign officers, directors, managing agents, or employees to appear for deposition in California, an amicus brief I wrote for the International Association of Defense Counsel noted at the outset of the brief that it was not repeating the arguments made by the party it supported about the relevant legislative history and statutes; rather, the brief was intended to supplement those arguments by showing that California courts similarly lack inherent authority to compel nonresidents to attend depositions within state borders. The brief also laid out an alternative theory not proposed by the parties, that even if the trial court did have discretionary authority to order individual Japanese employees to attend depositions in California, that discretion must be exercised consistent with principles of international comity, as well as the enumerated statutory factors. This approach increased the odds that the court considered the brief independent of the other nonparty submissions and understood where it fit in the bigger picture.
Once the amicus brief is on file, how can you tell when it has made a difference in a case? The clearest way is when the opinion cites the brief, when the decision is based on legal arguments made only in the amicus brief, or when a justice references an amicus brief by name at oral argument. But sometimes the signs of influence are more subtle, albeit no less significant.
One of my favorite examples is the role an amicus brief that I had written for various civil rights organizations played in United States v. Lanier. In that case, the question before the U.S. Supreme Court was whether, at the time a Tennessee judge had sexually assaulted and raped female court employees and litigants, the established constitutional right to bodily integrity clearly encompassed women’s right to be free from sexual assault. If so, the judge’s criminal convictions for this behavior would stand. The en banc Sixth Circuit, over a vigorous dissent, had concluded that this had not been clearly established because no Supreme Court case on similar facts had so held.
The civil rights organizations’ amicus brief included citations to federal appellate court decisions that had consistently held that sexual assaults committed by state actors under color of law violated the victims’ constitutional right to bodily integrity. The brief also included Department of Justice statistics showing that, since 1989, at least 17 judges, police officers, correctional officers, and border patrol agents had been prosecuted under the same criminal civil rights statute for improperly using their positions of power to rape and sexually assault women in their community. In fact, two other judges had pleaded guilty to the charges against them, even though the assault perpetrated by one of them was less physically intrusive than the forcible rape committed by Lanier.
The U.S. Supreme Court concluded that the requisite notice would be found where either Supreme Court or court of appeals decisions interpreting the Constitution have “clearly established” that liability may be imposed under the circumstances presented or when, in the light of preexisting law, the unlawfulness of the defendant’s conduct under the Constitution is apparent. The framing of this standard reflected a recognition of the appellate decisions and Department of Justice statistics cited in the amicus brief.
More recently, a published California Court of Appeal decision, G.G. v. G.S., interpreting a domestic violence restraining order renewal statute, took up recommendations made in an amicus brief I wrote for the California Women’s Law Center. The trial court had declined to renew a domestic violence restraining order because it determined the woman’s fear of future abuse not to be reasonable, in part because the original restraining order was not based on acts of physical violence and because the exact same form of abuse (physical stalking) had not been committed while the restraining order was in effect. The amicus brief pointed out that the court should have considered the totality of the circumstances—all forms of abuse, individually and as a whole—in assessing the reasonableness of her fear and the potential for future harm; the reasonableness of her fear should be assessed from the perspective of the reasonable woman in her position, who had experienced the range of sustained abuse she had; and both physical and emotional abuse should be considered when a trial court is determining the reasonableness of a renewal petitioner’s fear (indeed, emotional abuse may have longer-lasting effects than physical blows).
The Court of Appeal reversed and remanded the renewal order request. It made clear that on remand the reasonableness of the fear of future abuse should be viewed in light of the entire history, types, and range of abuse suffered by the woman seeking the restraining order renewal—including cyberstalking, technologically assisted threats, and physical stalking. The opinion specifically referenced the abusive conduct that should be considered, including conduct during the relationship (physical intimidation, stalking at work, manhandling her in public, seizing their children, and planting listening devices at home) and after it ended (planting more listening devices in her home, stalking her at least 70 times in the small hours of the night, calling and sending text messages outside of authorized channels, and retaining some level of access to her Apple account).
While the opinion did not directly cite the amicus brief, it did cite and quote many secondary authorities and excerpts from them about the prevalence and impact of stalking and abuse through technology that were laid out only in the amicus brief. It also adopted the renewal standard urged in the amicus brief: the trial court must determine whether a reasonable person, having experienced a range of physical violence and physical and online stalking and technological monitoring, would have a reasonable apprehension that the abusive behavior would resume after the order’s expiration.
In short, thoughtful and well-crafted amicus briefs are often helpful to appellate courts in deciding cases of widespread importance. What is more, they fulfill a critical function for nonparty clients and the courts. They serve as powerful vehicles to share the potential far-reaching impact of an appellate decision beyond the individual parties to the case, and they allow clients the opportunity to share their experiences and expertise with the courts in a way that can improve decision-making in legal areas that hit close to home for the amicus clients and those they serve.
