What sort of people/groups file amicus briefs & why do they?

Businesses and organizations are often interested in the outcomes of cases that they are not directly involved with—how a court rules could have a drastic effect on the way they must do business. This article contains all the information you need to know to decide whether to file an amicus curiae brief.

What is an Amicus Curiae Brief?

An amicus curiae brief is a persuasive legal document filed by a person or entity in a case, usually while the case is on appeal, in which it is not a party but has an interest in the outcome—typically the rule of law that would be established by the court in its ruling. Amicus curiae literally means “friend of the court.” Amicus parties try to “help” the court reach its decision by offering facts, analysis, or perspective that the parties to the case have not.

Parties must include all sorts of unexciting information in their briefs, such as the procedural history of the case, and they usually must address all the issues on appeal. An amicus party’s brief, by contrast, can choose a particular angle or argument and focus on it while the party briefs slog through details and necessities. An amicus party can make arguments that have not been made below and are not strictly confined to the trial court record and primary case law, and they often have more freedom to address broader policy concerns. Indeed, an amicus brief may often take the form of a sort-of Brandeis Brief that includes scientific information, statistics, or other non-traditional information.

This means that academic publications on the issue, empirical economist studies that may reflect on practical implications of the decision confronting the court, and an education on how courts in other states have decided the issue are all fair game in an amicus brief. Courts recognize that they do not make decisions in a vacuum, and will often, for example, value an association’s view of how a particular issue affects its members. Not surprisingly, trade associations are one of the most common filers of amicus briefs.

An amicus curiae brief can thus be a powerful and efficient advocacy tool. By getting straight to the point, they can catch the court’s attention with the best contribution they can make without breaking the bank in doing so.

Why Should I File an Amicus Curiae Brief?

Many groups or entities file amicus briefs, including trade associations. nonprofits, businesses, groups of professors, and government entities (yes, even the U.S. government files amicus briefs). The reason to file depends upon the case and your relation to that case, but often include the following:

• The court’s disposition of the case will affect you or your members (if you are an association, for example). An amicus brief is your opportunity to speak to the court on a matter that will affect you. This is probably the most common reason for filing an amicus brief.
• You are a think tank or other non-profit and your mission is to support a particular world view or educate the government and its players. An amicus brief is your opportunity to educate the court on an issue that you have studied extensively and that may advance your entity’s mission or values in society at large.
• You are an expert and you can educate the court. It is common for groups of academics or other experts to file amicus briefs when the decision may require understanding something from the experts’ field.

Of course, once you determine that you can help the court, you need to decide whether you want to spend the resources preparing an amicus brief. Here are some benefits you may not have considered:

• An amicus brief is a great marketing tool when utilized properly (and after filing). It shows you taking tangible action on an issue important to your customers, suppliers, members, donors, and even competitors. Amicus briefs can be written with fewer case citations and intricate legal discussion, so they are often more accessible to a non-lawyer audience. Entities that file amicus briefs in high-profile cases sometimes receive positive press coverage. Consider tapping into your marketing budget for an amicus brief.
• You can announce to the world that you are taking a position. This may be strategically useful in certain circumstances.
• You can educate the court on the particular case, but also educate it (and the parties) more broadly on the interests of your members or your company.
• For academics and subject-matter experts, an amicus brief may raise their profile in different communities. Perhaps an academic or other expert is interested in more expert-witness work; filing an amicus brief might be one way to let everyone know about their capabilities (or at least who they are).
• You are part of a similar case in the same or a different jurisdiction and the appellate court’s decision may be precedent—binding or persuasive—for your case.

Each case and situation is different, but if you become aware that you may have an interest in the outcome of any case on appeal, you should explore whether an amicus brief could benefit you.

Bona Law’s attorneys have crafted and filed many amicus briefs in their careers, and Bona Law has filed many amicus briefs (US Supreme Court, Fourth Circuit, Eighth Circuit, Tenth Circuit, Ninth Circuit and the Minnesota Supreme Court, as examples). Some of our amicus briefs have been given significant attention by the court and parties, and some may have affected the courts’ ultimate decisions. If you are considering an amicus brief, please contact us today. 

You can learn more about our appellate litigation practice here.

An amicus curiae, or “friend of the court” brief, is submitted to the court when an individual or group has an interest in a particular case, even though they are not a party. Amicus briefs may be filed by consumer protection groups, non-profits, private corporations, trade associations, government agencies, among others, and are frequently seen in high-profile or high-stakes cases. In some cases, multiple groups will sign a single amicus brief. The U.S. Supreme Court receives hundreds of amicus briefs each year. One recent Supreme Court case, involving the marriage equality act, set records for the most amicus briefs (147) and the most signatories on a single amicus brief (over 200,000). Supreme Court Justice Breyer has stated that amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.” Justice Alito has concurred, observing that, “an amicus may provide important assistance to the court by collecting background or factual references that merit judicial notice.” From influencing the outcome of a case to educating the court on an issue of national or wide-ranging importance, there are many reasons to consider submitting an amicus brief. Here are the basics.

“In filing an amicus brief you are attempting to influence the outcome of the litigation by offering what should be a unique perspective on the issue at hand. ”

WHY SHOULD I FILE AN AMICUS BRIEF?

The most common reason to submit an amicus brief in a case is because the court’s disposition of the case will affect you or the members of your group. In filing an amicus brief you are attempting to influence the outcome of the litigation by offering what should be a unique perspective on the issue at hand. Amicus briefs also provide an opportunity for experts, such as academics, non-profits, or think tanks, to educate the court on a particular issue.

Amicus briefs have become a regular part of the litigation process and can be viewed as an exercise of the constitutional right to freedom of speech and petition. Indeed, many social movements take advantage of the opportunity to submit amicus briefs to send a message to the courts and to the public about their goals and views, without having to initiate lawsuits themselves.

CAN I FILE AN AMICUS BRIEF IN WASHINGTON STATE COURT?

The Washington State Rules of Appellate Procedure allow the filing of amicus briefs if all parties to the case consent to the filing or if the filing of the brief would “assist” the appellate court. An amicus brief should not be a “me too” brief that simply duplicates the brief of one of the parties. As the oft-quoted Justice Posner has stated, the criterion for deciding whether to permit the filing of an amicus brief should be whether it will “assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs.” This criterion is more likely to be satisfied in cases in which:

• a party is inadequately represented;
• the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or
• the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide

If you have an interest in the outcome of a pending appeal and believe you have expertise or information that the parties do not possess and that could assist the court in making its determination, you should consider submitting an amicus brief. The parties to the case can consent to the filing of the amicus brief; otherwise, you must seek the court’s permission.

HOW DO I FILE AN AMICUS BRIEF?

To file an amicus brief, you must submit a request by motion. The motion must include the following:

• statement of your interest in the case and the person or group you represent;
• statement of your familiarity with the issues involved in the review and with the scope of the argument to be presented;
• statement of the specific issues to which your brief will be addressed; and
• statement of your reason for believing that additional argument is necessary on these specific issues.

A copy of your proposed amicus brief will be included with the motion. The parties to the case may object to a motion to file an amicus curiae brief. The court will then rule on the motion and decide whether or not to allow your amicus brief to be filed.

WHEN DO I FILE AN AMICUS BRIEF?

Washington Rules of Appellate Procedure require amicus briefs to be submitted to the Supreme Court (the state’s highest court) no later than 45 days before oral argument or consideration of the merits, if no oral argument is set. At the Court of Appeals level, amicus briefs are due no later than 45 days after the filing of the brief in opposition to the appeal (known as the “respondent’s brief”).

HOW I CAN HELP YOU

If you are interested in submitting an amicus brief in an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an amicus brief.

call (509) 662-3685 for an appellate consultation.