A Business Perspective on Amicus Briefing
Justice Craig T. Enoch (Ret.)
Robert J. Witte
WINSTEAD SECHREST & MINICK, P.C.
Presented in conjunction with the American Bar Association Section of Business Law,
Business and Corporate Litigation Committee,
Appellate Litigation Subcommittee:
Committee Forum August 9, 2004
“Effective amicus briefs can, and have, shaped significant decisions on important legal points.
The amicus can bring to the argument policy perspectives that present to the court the ‘big
picture’ in a way that a party’s brief may not, and, sometimes, cannot.” –Reagan Wm. Simpson
(Mary-Christine Sungaila, Effective Amicus Practice Before the United States Supreme Court: A
Case Study, SOUTHERN CALIFORNIA REVIEW OF LAW AND WOMEN'S STUDIES, Spring 1999, Pg.
187).
I.
Introduction
A. Written by "friends of the court", amicus curiae briefs inform an appellate court of
arguments not made by the parties to a suit or educate the court on matters of public
concern left unrepresented by the parties. Nancy Bage Sorenson, The Ethical
Implications of Amicus Briefs: A Proposal for Reforming Rule 11 of the Texas Rules
of Appellate Procedure, SAINT MARY'S LAW JOURNAL, 1999, Pg. 1220.
B. Amicus briefs have evolved from a neutral source of information to an integral part of
the appellate process, allowing non-parties to participate in the courts’ decisionmaking processes and influence the outcome of decisions. Paul Mark Sandler,
Andrew D. Levy, Kenneth Lasson, Appellate Practice for the Maryland Lawyer:
State and Federal, Second Edition Section VI – Brief Writing, Record Extracts and
Oral Argument, THE MARYLAND INSTITUTE FOR CONTINUING PROFESSIONAL
EDUCATION OF LAWYERS, INC., 2001, Pg. 1.
C. Amicus briefs are an effective means of advocacy for interest groups, private
individuals and business concerns. In certain circumstances, particularly in
supporting a party appearing before the U.S. Supreme Court, amicus briefs also may
be necessary to represent a client effectively. Nancy Bage Sorenson, The Ethical
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Implications of Amicus Briefs: A Proposal for Reforming Rule 11 of the Texas Rules
of Appellate Procedure, SAINT MARY'S LAW JOURNAL, 1999, Pg. 1230.
D. Amicus briefs are most useful in cases involving highly technical and specialized
areas of law, as well as complex statutory and regulatory cases, including cases
involving tax, patent and trademark law. The input of specialized experts in these
areas is needed to ascertain the potential effect of ruling may have on entire
industries. Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective
Amicus Curiae Briefs, JOURNAL OF LAW AND POLITICS, Winter 2004, pg. 41.
E. Well-written, attention-getting amicus briefs never duplicate the merits briefs, but
advance legal arguments not made by the parties and highlight the importance of the
legal, social, economic, and industry implications of a court’s decision.
II.
Amicus Briefing as an Effective Use of Resources
A. Groups that represent private interests utilize the amicus brief as a means to lobby the
courts; they advise and educate the court regarding policy implications and
procedural problems from the interest group's point of view, while still helping the
court arrive at a fair decision. Nancy Bage Sorenson, The Ethical Implications of
Amicus Briefs: A Proposal for Reforming Rule 11 of the Texas Rules of Appellate
Procedure, SAINT MARY'S LAW JOURNAL, 1999, Pg. 1239.
1. Although an amicus acts as an advocate, an amicus brief is most effective if not
obviously compelled by self-interest, but rather drafted to assist the court from the
amicus’ special perspective. Paul Mark Sandler, Andrew D. Levy, Kenneth
Lasson, Appellate Practice for the Maryland Lawyer: State and Federal, Second
Edition Section VI – Brief Writing, Record Extracts and Oral Argument, THE
MARYLAND INSTITUTE FOR CONTINUING PROFESSIONAL EDUCATION OF LAWYERS,
INC., 2001, Pg. 2.
2. Because of the potential for bias in amicus briefs, Supreme Court Rule 37 and
Federal Rule of Appellate Procedure 29 require private persons, groups or
associations to obtain the consent of both parties to file an amicus curiae brief, or
to file a motion for leave to participate. Nancy Bage Sorenson, The Ethical
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Implications of Amicus Briefs: A Proposal for Reforming Rule 11 of the Texas
Rules of Appellate Procedure, SAINT MARY'S LAW JOURNAL, 1999, Pg. 1239.
B. An amicus brief offers an inexpensive alternative to bringing suit, when a particular
group has an interest in an issue pending before an appellate court. Nancy Bage
Sorenson, The Ethical Implications of Amicus Briefs: A Proposal for Reforming Rule
11 of the Texas Rules of Appellate Procedure, SAINT MARY'S LAW JOURNAL, 1999,
Pg. 1240. For example, amicus curiae intervention is an alternative to the more
formal methods of class action: compulsory joinder and intervention. Paul Mark
Sandler, Andrew D. Levy, Kenneth Lasson, Appellate Practice for the Maryland
Lawyer: State and Federal, Second Edition Section VI – Brief Writing, Record
Extracts and Oral Argument, THE MARYLAND INSTITUTE FOR CONTINUING
PROFESSIONAL EDUCATION OF LAWYERS, INC., 2001, pg. 1
III.
Influence of Amicus Briefs on the U.S. Supreme Court
A. Amicus practice is most prevalent in the U.S. Supreme Court, although amicus briefs
are regularly filed in federal courts of appeals, state supreme courts and state
intermediate appellate courts. Reagan Wm. Simpson, How to be a Good Friend to
the Court: Strategic Use of Amicus Briefs, BRIEF, Spring 1999, Pg. 39.
1. An oft-cited study found that “when a case involves a real conflict or when the
federal government is a petitioner, the addition of just one amicus curiae brief in
support of certiorari increases the likelihood of plenary review by forty to fifty
percent.” Glenn W. Reimann, Sour Grapes or Sound Criticism: Is the Supreme
Court Really not Taking Enough Non-Tax Business Cases?, UNIVERSITY OF
MIAMI BUSINESS LAW Review, Winter 1999, Pg. 161.
2. In general, the more briefs filed in favor of certiorari on any given case, the better
the chances for plenary review. Sour Grapes or Sound Criticism, Winter 1999,
Pg. 186.
B. Organizations and individuals aspiring to influence the Supreme Court’s decisionmaking process increasingly employ amicus briefs as a judicial lobbying tool Kelly J.
Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
JOURNAL OF LAW AND POLITICS, Winter 2004, Pg. 33.
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1. Amicus curiae participation in the Supreme Court has increased dramatically over
the last fifty years. The number of amicus filings has increased by more than
800% over that time period. Joseph D. Kearney and Thomas W. Merrill, The
Influence of Amicus Curiae Briefs on the Supreme Court, UNIVERSITY OF
PENNSYLVANIA LAW REVIEW, January 2000, Pg. 749.
C. Amicus briefs influence on the Supreme Court’s decision-making process.
1. A study examining the Court’s 1969-1981 terms found that eighteen percent of
the Court’s decisions cited to at least one amicus brief. Kelly J. Lynch, Best
Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
JOURNAL OF LAW AND POLITICS, Winter 2004, Pg. 35.
2. A similar study for the Court's terms from 1986 through 1995 found that thirtyseven percent of the Court’s opinions referred to at least one amicus brief. Best
Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, Pg. 36.
D. A survey of seventy Supreme Court law clerks revealed that certain amicus briefs are
more useful to the Court than others. Best Friends? Supreme Court Law Clerks on
Effective Amicus Curiae Briefs, Pg. 41.
1. Fifty-six percent of the clerks found amicus briefs particularly useful in highly
technical and specialized cases, as well as complex regulatory and statutory cases.
Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
Pg. 41.
2. Twenty-three percent of the clerks reported amicus briefs especially helpful in
cases with bad legal representation or weak merits briefs. Best Friends? Supreme
Court Law Clerks on Effective Amicus Curiae Briefs, Pg. 43.
3. Nineteen percent of the clerks found industry-related amicus briefs very useful to
the Court. Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae
Briefs, Pg. 43.
IV.
How to Write an Effective Amicus Brief
A. The growing use of amicus briefs, and the corresponding increased in restrictions on
amicus filings, emphasize the importance of effective amicus advocacy. MaryChristine Sungaila, Effective Amicus Practice Before the United States Supreme
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Court: A Case Study, SOUTHERN CALIFORNIA REVIEW OF LAW AND WOMEN'S
STUDIES, Spring 1999, Pg. 188.
B. Because the amicus brief can be a vital tool for an advocate, one should approach its
preparation and writing with the same intensity and accuracy as a party’s brief. Paul
Mark Sandler, Andrew D. Levy, Kenneth Lasson, Appellate Practice for the
Maryland Lawyer: State and Federal, Second Edition Section VI – Brief Writing,
Record Extracts and Oral Argument, THE MARYLAND INSTITUTE FOR CONTINUING
PROFESSIONAL EDUCATION OF LAWYERS, INC., 2001, Pg. 2.
C. An amicus brief should supplement, not duplicate, a party’s brief. Mary-Christine
Sungaila, Effective Amicus Practice Before the United States Supreme Court: A Case
Study, SOUTHERN CALIFORNIA REVIEW OF LAW AND WOMEN'S STUDIES, Spring 1999,
Pg. 188.
1. The Supreme Court’s rule is: “An amicus curiae brief which brings relevant
matter to the attention of the Court that has not already been brought to its
attention by the parties is of considerable help to the Court... [one] that does not
serve this purpose simply burdens the staff and facilities of the Court and its filing
is not favored.” Paul Mark Sandler, Andrew D. Levy, Kenneth Lasson, Appellate
Practice for the Maryland Lawyer: State and Federal, Second Edition Section VI
– Brief Writing, Record Extracts and Oral Argument, THE MARYLAND INSTITUTE
FOR CONTINUING PROFESSIONAL EDUCATION OF LAWYERS, INC.,
2001, Pg. 1.
2. In a survey of seventy former Court clerks, thirty percent testified to scanning or
not reading an amicus brief that was duplicative, poorly written or merely
lobbying documents not grounded in sound argument. Kelly J. Lynch, Best
Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
JOURNAL OF LAW AND POLITICS, Winter 2004, Pg. 44.
D. An amicus brief should focus on the broad-based legal, social and economic
implications of a decision that the court may not have considered and the legal
arguments not advanced by others. Reagan Wm. Simpson, How to be a Good Friend
to the Court: Strategic Use of Amicus Briefs, BRIEF, Spring 1999, pg. 43.
1. An amicus brief focusing on one particular aspect of a case is often more effective
than one giving a generalized factual background. Kelly J. Lynch, Best Friends?
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Supreme Court Law Clerks on Effective Amicus Curiae Briefs, JOURNAL OF LAW
AND POLITICS,
Winter 2004, Pg. 59.
2. Information offered by amicus briefs should be helpful – i.e. hard facts or social
science data; “the farthest thing from a party argument is what is most helpful.”
Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
pg. 65.
3. Briefs containing accurate social science data provide insight into the practical
consequences, or “real world impact,” of appellate court decisions. Best Friends?
Supreme Court Law Clerks on Effective Amicus Curiae Briefs, pg. 67.
E. In terms of the effectiveness, the identity of the amicus filer or author matters.
1. A survey of seventy former Court clerks reported that the solicitor general’s
amicus briefs were considered more carefully than any other amicus brief, and
then state and government entities were considered carefully; public interest
groups were the next most popular group, followed by professional groups. Best
Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, pg. 51.
2. Also, amicus briefs authored by prominent academics or reputed attorneys,
writing within their expert field, received greater attention from Supreme Court
clerks. Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae
Briefs, pgs. 54, 55.
F. Although organizations find it advantageous to file individual briefs, a collaborative
amicus brief, which includes a listing of the organizations collaborating on the joint
brief, is generally preferable, because it reduces repetitive filing, improves the writing
and thoughtfulness of the brief, and indicates that numerous organizations hold the
same view. Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae
Briefs, pg. 58.
1. Sixty-three of seventy former Court clerks (or ninety percent) reported that they
preferred to see collaboration rather than amici filing separately, specifically
because collaboration creates better amicus briefs and shows a broader consensus.
Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
pg. 60.
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2. A collaborative brief filed by organizations not traditionally viewed as ideological
allies merits more attention than organizations submitting single amicus briefs.
Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs,
pg. 63.
G. Procedures for filing an amicus brief depend on the jurisdiction.
1. In Texas, unlike in most jurisdictions, amicus briefs are received but not filed by
the clerk; therefore, leave of court is not necessary to file an amicus brief. Reagan
Wm. Simpson, How to be a Good Friend to the Court: Strategic Use of Amicus
Briefs, BRIEF, Spring 1999, pg. 41.
2. In the Supreme Court and federal courts of appeals, leave of court is not necessary
if: (1) all parties have provided written consent to the filing, and copies of the
written consent accompany the brief; or (2) the brief is filed by certain designated
entities. How to be a Good Friend to the Court: Strategic Use of Amicus Briefs,
pg. 41.
3. Specifically, certain required features of a Supreme Court amicus brief – the
summary of arguments, table of contents, and section headings – are relied on to
determine whether the brief contributes anything novel, as a duplicative amicus
brief will not be read. Best Friends? Supreme Court Law Clerks on Effective
Amicus Curiae Briefs, pg. 44.
H. The following is a checklist of recommendations to amicus filers. Best Friends?
Supreme Court Law Clerks on Effective Amicus Curiae Briefs, pgs. 69-72:
-
Avoid repeating information presented in the merits briefs or other
amicus briefs; do not submit a “me too” brief -- verbatim iteration is
the final flaw of any amicus brief.
-
Add to the party discussion and contribute to the court’s knowledge
base in a significant and particular way; address an important factual
or legal aspect of the case that was overlooked by the parties.
-
Contact the party that the amicus brief seeks to support as early as
possible in order to determine how to assist the party.
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-
Consider collaborating with other amici in filing a brief, especially if
they are ideologically opposed but have a similar viewpoint on a
particular aspect of the case not addressed by the parties.
-
Organizations with particular expertise can present technical, industry,
historical or social science information in an amicus brief in order to
expand arguments presented by a party and discuss ramifications of a
particular decision, so as to enhance a court’s understanding of the
specific legal and factual issues.
-
Brevity is very necessary, especially considering that an amicus filer
focuses only on those arguments or information that correspond to its
specific organizational interests; if this objective can be achieved in
ten pages, then do not use the entire thirty pages to stretch out the
argument.
-
An amicus brief must be well-written, meaning written in line with the
function of the brief, stating how the court’s resolution of a private
dispute will affect other parties, and it must be well-organized; there
must be a table of contents and summary of arguments that clearly
state what the brief adds to the court’s deliberation of the merits.
-
An organization that files an amicus brief should manifest its real,
substantial interest in a case by showing how the case is important for
the group; therefore, do not disregard the state of interest section in the
brief, but rather identify the interest of the amicus, so that the special
perspective of the amicus is self-evident.
-
Well-written amicus briefs focus on the legal issues raised in the case
and utilize relevant examples of precedent to apply precedent as a
judge would.
-
An amicus filer must show that it has carefully considered and
articulated the legal arguments that are important to it; if a filer has a
truly unique and valuable contribution, then it may consider filing an
independent brief.
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-
A potential amicus filer should contemplate hiring a top advocate to
influence the decision-making of the Court, which may be easier to
achieve by pooling resources together with other similarly-minded
organizations.
V.
Multiple Uses of the Amicus Brief
A. The amicus brief has multiple uses, including: (1) examining policy issues; (2)
providing information beyond the record in the case; (3) providing a more attractive
advocate; (4) providing support for the grant of discretionary review; (5)
supplementing a party’s brief; (6) endorsing a particular position; (7) correcting a
decision; and (8) seeking to limit the effect of an unfavorable decision or expected
decision. Reagan Wm. Simpson, How to be a Good Friend to the Court: Strategic
Use of Amicus Briefs, BRIEF, Spring 1999, pg. 41.
B. Additionally, amicus briefs allow amici to draw on their own experience to identify
practical consequences of the decision below that are not apparent from the record
and to make arguments that have been neglected by the parties, as well as to
potentially take the place of expert witnesses and communicate a body of research
findings. Paul Mark Sandler, Andrew D. Levy, Kenneth Lasson, Appellate Practice
for the Maryland Lawyer: State and Federal, Second Edition Section VI – Brief
Writing, Record Extracts and Oral Argument, THE MARYLAND INSTITUTE FOR
CONTINUING PROFESSIONAL EDUCATION OF LAWYERS, INC., 2001, pg. 1.
C. Amicus briefs do not only serve a valuable subsidiary role, but can virtually replace a
merits brief that is particularly weak, when the amicus brief is exceptionally strong.
Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, pg. 37.
VI.
Conclusion
A. Amicus briefs have become a feature of litigation in state and federal courts. Michael
K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the
Friends Leave, AMERICAN UNIVERSITY LAW REVIEW, Summer 1992, pg. 1243.
B. Amicus briefs are an innovative technique as courts are confronted with complex
cases and must manage judicial resources and secure fair representation of interests
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outside their jurisdiction. The Litigating Amicus Curiae: When Does the Party Begin
After the Friends Leave, pg. 1243.
C. No longer a mere friend of the court, the amicus has become an advocate and
lobbyist, capable of influencing the court’s decision-making. The Litigating Amicus
Curiae: When Does the Party Begin After the Friends Leave, pg. 1243.
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