Learn how to use, and how to respond to, amicus briefs.
The major advantage of making or clarifying law through legislation is that in theory—and in practice, if it is done right—all interested parties can have their say. Not so with adjudication. To be sure, in principle the adjudicative judgment binds only the parties before the court. The doctrine of stare decisis, however, ensures that the legal rules necessary to the court’s decision become the law for everyone within the court’s jurisdiction. Thus, those who frequent the hearings of the Supreme Court of the United States are familiar with the scene in which a courtroom full of tall-building lawyers, meters running on “high,” winces in pain as some trial lawyer inexpert at appellate advocacy (but lucky enough to have gotten cert granted) butchers a point of law crucial to all their clients.
The amicus brief is an increasingly popular device designed with the hope of giving these other interested parties their say. We say “with the hope” because judges rarely read all the amicus briefs. They will surely read one filed by the United States, probably one filed by the ACLU in a civil-rights case or by the AFL-CIO in a labor- law case, and probably one filed by a lawyer in whose integrity and ability they have special confidence confidence (yet another reason to develop a reputation for these qualities). The rest will very likely be screened by law clerks, with only a few (if any) making it to the judge’s desk.
Amicus briefs pose special problems, both for the side they favor and for the side they oppose. It is difficult to generalize about them, since they serve so many different purposes. Perhaps the most common purpose, at least in courts of last resort, is to enable the officers of trade association to show their members that they are on the ball. To achieve this end, it really does not matter what the amicus brief says. It can track the party’s brief; the filing of it is what counts. The same can be said of the amicus brief filed by 35 states, or by the chief law-enforcement officers of 50 metropolitan jurisdictions. The very cover of the brief makes its principal point—a very telling point in support of a petition for discretionary review: this case involves an issue of grave national importance.
With respect to amicus briefs on your side of the case, the best advice we can give is a caveat: it is perfectly appropriate to encourage filings by amici—for example, by advising the civil division of the Justice Department or the National Association of Attorneys General that your case involves an issue in which they have a considerable stake. But it is unethical for you or your client to have any part in funding or preparing the amicus brief. You can tell an inquiring amicus what you intend to argue, but do not suggest what the amicus should argue to complement that. Coordination is the amicus’s job, not yours.
What about amicus briefs on the other side of the case? You cannot afford to ignore them entirely. Significant additional points raised by a prominent amicus (the United States, for example, or the agency with responsibility for the field that the litigation involves) must be answered. Yes, it does seem unfair—rather like giving your adversary double the page limit that you have—but life is like that. You can probably afford to make no response to the other amici, unless one of them makes a seemingly persuasive argument that is fundamentally different from your adversary’s approach—for example, arguing that the dispositive text has a meaning different from what your adversary claims, but one that still causes your client to lose. You should respond to this briefly on the merits, but preface the response with the protestation that the point was not raised below and is not fairly included within the question on which discretionary review was granted. As for the other amicus briefs, say nothing—but be prepared to answer at oral argument questions based upon their contents.
An increasingly popular category of amicus brief is the academic belief—“Brief on Behalf of Legal Historians,” or “Brief on Behalf of Professors of Securities Law.” These are usually drafted by a few professors and then circulated from law faculty, seeking professional sign-ups. Advocacy and scholarship do not go well together, which is why many academics never lend their names to professional amicus briefs. Some judges, however, may give these filings undue weight. An easy way to cut them down to size is to run a literature check under the names of the signatories. You’ll often find that most of them have produced no scholarly publication on the point in question or sometimes even in the field at issue. Point this out to the court. And if it is so, point out that some academic publications (by professors who remain, perhaps, too immersed in their scholarship to hustle up an advocacy brief) favor your side of the case. If the academic brief seems particularly damaging, you might take the trouble to check the scholarly writings of the signatories; some professors have been known (O tempora, O mores!) to join a brief that flatly contradicts their writings. By noting this, you’ll help both the court and the academy.
What if you’re writing an amicus brief yourself? Don’t replow the ground you expect the party you’re supporting to cover—unless you have reason to believe that the party you’re supporting is using a particularly dull plow. It sometimes happens (though rarely) that an amicus brief will do a much better job than the party’s brief on the party’s own basic theory of the case. Ordinarily, however, you should try to develop a “take” on the case that is different from what the party produces; or to discuss in great depth an aspect of the case (for example, historical material) that the party will not have much time for; or perhaps (if you are supporting the appellee) to defang a particular amicus brief filed on behalf of the appellant. Our constant injunction of brevity has special force here, since not even the demands of duty drive judges to read amicus briefs that are bloated. Make the one or two points (preferably one) that you think will contribute something important and new –and close.