Why You Should File An Amicus Brief

In many cases, litigation doesn't just affect the parties involved. A civil lawsuit by an individual against a company, for example, could have an impact on other companies who compete in the same market or operate under the same legal rules and regulations. The way a court applies the law in just one case can have wide repercussions. And courts don't just apply existing law, they sometimes change it.

The federal court system and most states have rules that allow third parties to intervene in existing lawsuits. But intervention is rare. More often, a third party won't be so closely affected by a case that they can intervene but will still have a stake in the outcome. That's why court rules allow for briefs from amici curiae, or "friends of the court." Companies, organizations, individuals, or groups of individuals can submit arguments on behalf of themselves, encouraging courts to rule in favor of the party whose interest is most closely aligned to theirs. As organizations and individuals lobby legislators, so too can they lobby the court system through amicus briefs.

Amicus briefs aren't just lobbying efforts, however. They can (and should!) assist courts in reaching the right decision in tough cases with complex legal issues. In the words of attorney Stephen Shapiro, speaking about amicus briefs submitted to the U.S. Supreme Court:

[A]n amicus brief must bring something new and interesting to the case. This might be better research, an explanation of the connection between the particular case and other pending cases, an improved discussion of industry practices or economic conditions, a more penetrating analysis of the regulatory landscape, or a convincing demonstration of the impact of the case on segments of society apart from the immediate parties. It also can be helpful to discuss the appropriate breadth of the Court's decision in light of such considerations.

Amicus briefs should not just rehash an argument already made to the court. They should be novel, or more expansive, or suggest an outcome that may be more of a compromise than the interested parties are demanding. They should be filed by third parties with a profound and specific interest in the case at bar.

Courts routinely grant motions to submit briefs of amicus curiae. The U.S. Supreme Court, for example, has what could fairly be described as an open door policy. However, the Seventh Circuit Court of Appeals has articulated stricter rules, limiting the number of briefs filed:

An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.

Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997) (internal citations omitted).

The actual impact of an amicus brief often depends on the judges to whom it is submitted. Some judges, like Judge Richard Posner of the Seventh Circuit and Justice Antonin Scalia of the U.S. Supreme Court, are openly hostile to amicus briefs. Others are more supportive. At the conclusion of oral arguments before the Sixth Circuit Court of Appeals in the same sex marriage cases (August, 6 2014), presiding Judge Jeffrey Sutton thanked the many amici filers for submitting a wide breadth of arguments for his panel to consider.

Cases with major social implications, such as Brown v. Board of Education, Hobby Lobby v. Sebelius, and the current same-sex marriage cases consolidated as Obergefell v. Hodges, attract the most amicus briefs. Cases with more limited scope, such as regulatory challenges in certain industries or procedural disputes, garner less outside interest. In those cases, an effective amicus brief in favor of one party or the other can play a bigger role in the outcome.

A study of Supreme Court decisions from 1946 to 1995 revealed a steady increase in the number citing amicus briefs. By 1995, amicus briefs were cited in 37% of the Court's rulings. And amicus briefs can generate significant media coverage.

If you or your organization has a unique interest in the outcome of a case currently before a judge or court sympathetic to amicus briefs, it may be a good idea to file one. You should seek counsel who is competent in the law implicated by the case and admitted to practice (and experienced in filing briefs) in that court. And don't wait - amicus briefs are usually due at the same time the briefs for the parties are due, so timing is important. Counsel should have at least one month to prepare and file your amicus brief.

If you are interested in filing an amicus brief in a pending case, consider it seriously and seek counsel now. The clock is ticking, and you could be doing yourself or your organization a great disservice if you ignore appropriate opportunities to assist courts with cases that matter to you.