Amicus briefs are a staple of appellate practice, especially in the U.S. Supreme Court and in a state's highest court. In a previous article, we addressed some of the strategic reasons why an entity might file an amicus brief to advance its own mission and agenda by bolstering another's case on appeal. Amicus briefs have become so integral to the appellate decision-making process that courts1 as well as public interest organizations2 have their own guidelines and practice pointers for the preparation and filing of these briefs, beyond the text of the rules of appellate procedure. Amicus briefs that stake out new ground or a different perspective on a case or legal issue can be invaluable to an appellate court. As Supreme Court Rule 37.1 states: "An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court." The Court's Rule then cautions that "[a]n amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."3

When an entity decides that a case or issue pending before an appellate court is important enough, how does an advocate for that prospective amicus approach the contents of such a brief? Appellate rules for amicus briefs allow amicus participants to skip a recitation of the facts of the case and its procedural background. In fact, amicus briefs that restate the record and restate parties' arguments can waste the Court's and the clerks' time. Other sections are required. In the U.S. Supreme Court, required sections are the tables of contents and authorities, a brief statement outlining the interest of the amicus, a summary of the argument, the argument and a conclusion.

Courts are busy at all times and thousands of cases vie for a few coveted argument or merits consideration slots each year. Whether filed at the time of an application for review or after review is granted, an amicus advocate needs to have the brief read - carefully - to maximize the amicus's hoped-for impact on the Court. Here is one way to think about constructing the key elements of an amicus brief, and the order of their crafting, with the goal of getting the finished amicus brief read.

  • Table of contents: I have always believed that the first cut made by clerks between the briefs that get studied and those that get skimmed starts with the table of contents. Especially in a case that has multiple amicus brief filings, an effective table of contents provides a complete overview of the arguments made in the brief. That means the headings in the table are complete sentences arranged to capture the position of the amicus about the case and its proper resolution, rather than a set of out-of-context fragments or phrases. If the table of contents is not complete, informative and inviting, the clerks and the Court might still review the brief, but the submission might not immediately get the kind of attention that an effective outline provided by an engaging table of contents would invite.4
  • Interest of amicus: Advocates often have different views about the importance of the Statement of Interest, and therefore the attention it might command in drafting. Some make it a rote restatement of the agency's mission. I have always regarded it as a "press release" to explain to the court (as well as to the media) why this particular case matters so much that the entity decided it needed to participate. Viewed in this light, an advocate is writing not just for the clerks, but for the general public. It may often be the case that a press story gets written based only on the statement of interest by a busy journalist on a deadline. It must tie together succinctly the amicus's mission and the particulars of the case.
  • Argument: Mercifully short, substantive, insightful and decisive - these are the adjectives that one hopes a clerk or judge would use after reading an amicus brief. Argument should not be bogged down in the case's procedure or record except as those facets are integral to the amicus's own argument about the law or policy impacted in the case. In those instances, lifting up one or two key places or transactions in the record makes all the difference for an important distinction in the law the amicus hopes the Court will adopt. The argument must address the law as the amicus hopes it will evolve or hopes to preserve, or the policy and social implications of adopting (or resisting) the amicus' position. To paraphrase Rule 37.1 of the Supreme Court, an effective argument would mark a new path through the thicket of the case to guide a court to a proper resolution. In short, it helps the Court decide the case the way that the amicus wants it decided to advance its mission or position.
  • Summary of Argument: Aside from the Table of Contents, I believe that the Summary of Argument is probably the most-read section of an amicus brief by the Court and clerks. Obviously, it precedes the Argument section. But as a practice, I write it last. I intend it to tell the reader a story - from the perspective of the amicus - about how the case should be resolved and why. In short, it is not written in a formal legal style, as it invites the reader to examine the facets and details of the story to follow in the Argument.
  • Conclusions: Every appellate brief ends with a request or "prayer" for relief - a request that a lower court opinion be affirmed or reversed. That a conclusion is a required portion of an amicus brief means that the Court views it as a last opportunity to make a final statement of why this case (and this specific brief) are important. The advocate should use it effectively to sum up in a sentence or two.

Amicus briefs that offer a court a new way to look at a problem, the law and the implications of a case will boost that court's ultimate reasoning and decision-making. Those briefs that do so compellingly are truly friends of the court.

Footnotes

1. Memorandum to Those Intending to File an Amicus Curiae Brief in the Supreme Court of the United States (October 2019), found at https://www.supremecourt.gov/casehand/AmicusGuide2019.pdf

2. League of California Cities, Amicus Guide: Summary of Rules of Court and Procedural Considerations Relating to Amicus Participation (2017), found at https://www.cacities.org/amicusguide

3. Rules of the Supreme Court, https://www.supremecourt.gov/ctrules/2019RulesoftheCourt.pdf

4. Former Supreme Court law clerks have stated that they are responsible for picking the wheat from the chaff. One clerk noted that "[a]fter six months I could read amicus briefs in sixty seconds; I could make judgments as to their usefulness and dispose of them. Others were read more seriously." K.J. Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. L. & POLITICS 33, 43 (2004).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.