FDCC’s “Friday 5” newsletter for August 30 includes my article discussing why the U.S. Judicial Conference’s Proposed Amicus Brief Amendments Are Unfriendly To The Civil Defense Bar. The article explains that the pending proposal to amend Federal Rule of Appellate Procedure 29 would require all non-governmental amicus briefs submitted to federal courts of appeals to be accompanied by a motion for leave. Under the amended rule, each motion for leave would have to discuss why the proposed amicus brief is “helpful” to the court—a vague standard certain to invite objections by parties on the other side.
Rule 29 currently allows amicus briefs to be filed in federal courts of appeals if all parties consent. In 2023 the Supreme Court amended its own amicus brief rules to eliminate even the need to obtain the parties’ consent.
The proposed Rule 29 amendment woud be detrimental to the civil litigation defense bar. It would engender uncertainty about whether an amicus brief will be accepted for filing. It may discourage preparation of briefs that provide a federal appeals court with additional, defense-oriented perspective on the legal issues involved in an appeal—exactly what the plaintiffs’ bar would like to prevent a court from considering.
Read more: Requiring Leave To File Amicus Briefs Is A Bad Idea.