For real estate practitioners, it is a rare opportunity to file an amicus curiae brief (literally translated to “friend of the court brief,” and more commonly referred to simply as an “amicus brief”) with the U.S. Supreme Court, and even rarer that the Court’s decision would have a direct effect on the outcome of an active case. When presented with such an opportunity recently, our office quickly learned that, if this moment arises, it will be helpful to have already made these four considerations.
It may seem obvious, but in order to have the ability to file an amicus brief with SCOTUS, the filing attorney must be barred with SCOTUS. Luckily, this application process is quite easy. The filing attorney needs to include: (1) two sponsors who are currently members in good standing of the SCOTUS Bar; (2) a certificate of good standing from the filing attorney’s state’s bar organization; and (3) the required filing fee. To e-file the amicus brief, the filing attorney must also register for an e-filing account, which is a relatively simple process.
The next step before drafting is to enter a notice of appearance in the matter in which the amicus brief will be filed. Lastly, the filing attorney must ensure a motion for leave to file the amicus brief is not required. No motion for leave is necessary at the certification or merits stages if written consent of all parties to the appeal has been provided. Many parties provide blanket consent to amicus briefs, and such consent is typically reflected on the Court’s docket, but this is something to be mindful of.
After the above is completed, then comes the fun part: drafting an amicus brief worthy to be in the Library of Congress. It is extremely important to know all the formatting rules specific to SCOTUS, such as font, margins, spacing, and page limits, among others. SCOTUS-issued guidance has almost everything one might need to know when drafting the brief. These formatting tips (and timing tips below) may not sound as important as crafting an argument worthy to be read by nine of the most important decision makers in the country, but without strict adherence to the rules, the amicus brief may be rejected before the Court even reads it. Further, ensuring compliance with the filing requirements is a great early signal to the Court as to the credibility of the position being argued.
When drafting the amicus brief, the only required sections of text are (1) the interests of the amicus or amici; (2) summary of the argument; (3) argument; and (4) conclusion. Each of these should be a separate section, with a separate heading and text. This is not much different than the normal amicus procedure in state or lower federal courts.
Because there are very specific rules for printing the hard copies of the brief that must be filed, we recommend using the services of a printing company to print and assemble the hard copy of the brief, which must be delivered to SCOTUS. Our office used a local Washington D.C. firm that was very familiar with the SCOTUS filing process and very helpful in providing guidance through that process.
The turnaround time to file an amicus brief is short. Before the Court has agreed to hear a case, the deadline to file an amicus brief in support of a petitioner is 30 days after the case is placed on the docket or the Court calls for a response, whichever is later. This deadline may not be extended.
Where the Court has agreed to hear a case, the deadline to file an amicus brief is a tight seven days after the party it supports files its brief. If the amicus brief is in support of multiple parties, the deadline is seven days after the last timely filed brief of a party whom the amicus brief supports. If the amicus brief is in support of no parties, the deadline is seven days after the due date for filing the petitioner’s brief, irrespective of when such brief is actually filed. The Court will not extend these deadlines.
Although filing an amicus brief with SCOTUS can be daunting, if you are familiar with the steps and procedures, this can be a smooth and rewarding process that will result in your arguments being preserved for posterity.
