Why and When to File an Amicus Brief

Appellate courts are a vital part of our justice system, and I’m pleased to have spent 17 years as a jurist in one of the best. These courts evaluate cases that were previously ruled on to ensure the right judgment was made at the trial level. I enjoyed being in a position to try and “get it right” after a case had been tried below.

You may find a case you feel strongly about reach this elevated level of the justice system. Even if you’re not one of the parties in the case, there may be a way to have your say utilizing a tool I often saw when I was a judge: the amicus brief.

What Are Amicus Briefs?

An amicus curiae is a person who isn’t a party to a case. They assist an appellate court by offering additional, relevant information or arguments the court may want to consider before making their ruling. The phrase, amicus curiae, is Latin for “friend of the court.” Amicus briefs – shorthand for the formal term “amicus curiae briefs,” are legal briefs filed in appellate courts by amicus curiae. They are submitted in a specific case under review. They essentially show the court that its final decision will impact people other than the parties.

Amicus briefs are filed by people who typically take the position of one side in a case, in the process supporting a cause that has some bearing on the issues in the case. The groups most likely to file amicus briefs are businesses, academics, government entities, non-profits and trade associations.

In the first 100 years of American high-court cases, amicus briefs were rare. From 1900 to 1950, amicus briefs were filed in only about 10% of all of the cases on appeal, according to a review of amicus advocacy published by the University of Pennsylvania Law Review. However, the landscape has now completely changed — so much so that today more amicus briefs are being filed in the state and federal appellate courts than ever before.

Different appellate courts have their own rules regarding amicus briefs, so checking the rules before you file such a brief is imperative. Since, historically, amicus briefs were supposed to bring new relevant information, not argued by the parties, to the attention of the court, the courts tend to favor these types of amicus briefs. However, some organizations use amicus briefs like press releases, stating positions not only to inform the court but to influence public perception. While these briefs are often considered a burden by appellate court jurists, they can be a good way for a group to relate to the public in such a way that influences goodwill and even profits. This is particularly the case in this age of social media engagement when the values of an organization are so readily on display 24-7.

Why File an Amicus Brief?

There are good reasons to file an amicus brief. It all depends on what you’re trying to achieve. The following are some of the best reasons for employing this important tool.

1) The Outcome Sets a Precedent

In some appellate court cases, the decision can be a precedent-setting one. This means a binding ruling for future court cases. If you’re currently involved in a similar case in an appellate court, you should seriously consider filing an amicus brief to share your relevant views on the matter. Taking this step may ensure a favorable ruling in your case.

Another good reason lawyers may write amicus briefs is to inform the appellate court of rulings from other states. This tactic can help keep a level of consistency in orders from state to state. It can also give the ruling state valuable knowledge about how different courts have seen this type of case.

2) The Outcome Directly Affects your Group’s Members

Many entities choose to file an amicus brief when the outcome of the case directly affects their members. An amicus brief will allow you to speak to the appellate court on the subject matter at hand. You can advise the court on how a specific ruling on the case will affect your members and the organization that you’re a part of. You can also highlight the potential legal, economic or social implications of a particular ruling, including telling the court about the impact of a possible decision on an industry, or on individuals or groups. And an amicus brief can explain why a particular holding by the court might be unworkable in other situations. You would do this to help the court understand the real-world consequences of a particular decision.

3) You Have Expert Knowledge on the Subject

Another common reason to file an amicus brief is that you have extensive knowledge of a subject, and you want everyone to share that. Your goal would also be to make the court privy to this knowledge by educating the judges. This type of brief is usually reserved for field experts and academics who can bring experience to the table.

4) You Want to Raise a Person’s Profile

For those who are experts or academics in a particular field, amicus briefs are a great way to get your name out there. Filing an amicus brief lets many people know that you have expert capabilities in an area and that you’re available as an expert witness on the subject. Ideally, you’d also be trying to educate the court on the subject matter while furthering your community profile on that subject matter.

5) You Want to Educate the Court

Non-profits also find amicus briefs are a great way to educate the court about specific issues. These organizations tend to have particular world views on certain subjects that they’ve studied extensively. When a court’s decision may end up affecting a non-profit institution, or their goals, for example, the organization may file an amicus brief.

6) It’s a Great Marketing Tool

I can’t talk about filing amicus briefs without sharing their excellent marketing potential. When utilized correctly, this type of brief can display you and your organization in light of how much you care about a specific issue. It can also demonstrate your ability to take action. These briefs are perfect for those looking to receive some positive press coverage, particularly from a high-profile case.

Motion for Leave to File

Different appellate courts have their own rules regarding amicus brief filings. Many require you to file a motion for leave to file such a brief, for instance. This document shares your interest in the case and why your brief would provide the court with useful information and help the jurists make their ultimate decision. That’s why it’s critical to check the rules of the appellate court before filing an amicus brief.

Contents of an Amicus Brief

An appellate court may receive a great many amicus briefs for a specific case. Therefore, in most jurisdictions, they tend to have a unified format for ease of reading. For instance, most such briefs will need to have all of the following components:

A Cover Page that indicates reversal or affirmance
A Table of Contents
A Table of Authorities
A Statement of Identity, interest, and source of authority of the filer
A Statement disclosing any party who financially contributed to the brief

Tone and Style are Important

In addition to all the usual hallmarks of any good appellate brief, the purpose and relevance of an amicus brief must be readily apparent from the first page. When I was a justice on the Georgia Supreme Court, if a cursory review of the brief suggested it was merely duplicative of a party brief, I, and most of my colleagues, tended to ignore it.

The tone of the brief is also important. Amicus briefs should use an even, objective tone. After all, they are supposed to aid the court make a good decision, not advocate for a party.

Lastly, but certainly not least, brevity is critical. In most cases, an amicus brief can achieve its purpose in far fewer pages or words than the applicable rules provide. An amicus brief that is only as long as the space needed to accomplish a particular goal is always going to be appreciated by busy judges.

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