A Comprehensive Resource to Strategizing, Writing, & Filing Amicus Briefs

Writing amicus curiae (“friend of the court”) briefs is my favorite activity as an appellate attorney. When I was a Dartmouth freshman, I knew nothing about writing legal briefs. But my “Young Man In American Literature” course taught me how to transform a large volume of thought-provoking material (a different novel each week) into an insightful essay strictly limited to a single, typed page.

Larry Ebner, appellate attorney at Capital Appellate Advocacy in his Washington DC office

Writing an effective amicus brief can be similarly challenging. It’s an art mastered through years of practice. The best amicus briefs are succinct and highly readable. They make a discrete number of points. And they do not repeat the legal arguments already made by the supported party.

This All Things Amicus page is intended to be a resource for anyone interested in writing or reading amicus briefs.  It provides links to many of my own amicus briefs, as well as to my published articles, commentaries, and presentations about the nuts and bolts of drafting persuasive amicus briefs and using them strategically. There also are links to the Supreme Court’s and federal courts of appeals’ amicus brief rules and guidance. And this page evolves, there will be special features, including my selection of the Amicus Brief of the Month.

How to Draft Effective Amicus Briefs & Use Them Strategically

Amicus curiae briefs are a common as well as important part of appellate practice in the U.S. Supreme Court, federal courts of appeals, and state appellate courts. I had the pleasure of speaking to the Beverly Hills Bar Association on this subject. This one-hour webinar provided practical information for lawyers who either are seeking influential amicus support for clients involved in appeals, or who are called upon to draft persuasive amicus briefs on behalf of trade associations, professional organizations, advocacy groups, or ad hoc coalitions of legal, scientific, or technical experts.

Amicus Brief Rules & Guidance*

Supreme  Court Rule 37 (effective Jan. 1, 2023)
Supreme Court Amicus Guidance (Jan. 2023)
Federal Rule of Civil Procedure 29
First Circuit — (no local rule)
Second Circuit — Local Rule 29.1
Third Circuit  — L.A.R. 29.0
Fourth Circuit — Local Rules 29(a) & 28(b)
Fifth Circuit — 5th Cir. R. 29
Sixth Circuit — 6th Cir. R. 29
Seventh Circuit – Circuit Rule 29
Eighth Circuit — 8th Cir. R. 29A
Ninth Circuit — Circuit Rules 29-1, 29-2, 29-3 & Circuit Advisory Comm. Notes
Tenth Circuit — 10th Cir. R. 29
Eleventh Circuit – 11th Cir. R. 29-1, 29-2, 29-3, 29-4 & I.O.P.
D.C. Circuit — Circuit Rule 29
D.C. Handbook of Practice
Federal Circuit — Fed. Cir. R. 29 & Practice Notes

* These links are provided as a convenience. Always check for amendments and updates.

Larry Ebner’s Publications & Webinars About Amicus Briefs

Op-Ed: Federal Judge’s Amici Invitation Is A Good Idea, With Caveats, Law360, 2023

Federal Courts Should Follow Supreme Court’s Amicus StanceLaw360, 2022

How To Draft An Amicus Brief That Actually Gets ReadInsights/Federation of Defense & Corporate Counsel, 2022

Welcome News! The Supreme Court Proposes to Ditch the Amicus Brief Consent RequirementDRI/The Brief Case, 2022

Webinar: Friendly Persuasion: Drafting Effective Amicus Briefs & Using Them Strategically, Beverly Hills Bar Association, 2022

Representing Amici Curiae In High-Profile AppealsCorporate Counsel Business Journal, 2021 (interview)

Appellate Courts Should Welcome Well-Crafted Amicus BriefsLaw360, 2020

Five-Minute Guide To Trade Association Amicus BriefsCapital Appellate Advocacy PLLC, 2020

With Friends Like These: The Amicus Issues In Flynn CaseLaw360, 2020

Flat-Fee Legal Billing Can Liberate AttorneysDRI For The Defense (Feb. 2020) (reprinted from Nov. 4, 2019 Law360), 2020

Make Amicus Briefs Part of Your Advocacy ProgramAmerican Society of Association Executives, 2019

A Broader View of the U.S. Supreme Court BarLaw360 , 2019

Trade Associations Want To Know: How Much Does An Amicus Brief Cost?Capital Appellate Blog, 2018

Collaborate Collegially on Legal Writing, DRI-The Voice, 2018

Learning The High Art Of Amicus Brief WritingDRI-The Voice of the Defense Bar, 2017

Thinking AmicusDRI-The Voice of the Defense Bar, 2018

The United States As Amicus Curiae: Making Uncle Sam Your New Best FriendDRI-The Voice of the Defense Bar, 2016

Making Strategic Use of Amicus Briefs, DRI-The Voice of the Defense Bar, 2015

Representing Amici CuriaeBook Chapter in “Strategies For Appellate Litigation” (Aspatore), 2015

How Technology Has Improved Legal Writing, DRI-The Voice of the Defense Bar, 2015

In-House Litigation Managers Need To “Think Amicus”Law360, 2014

Amicus Brief FAQsDRI-The Voice of the Defense Bar, 2013

Amicus Brief of the Month logo on attorney Larry Ebner's Capital Appellate Advocacy PLLC law firm website

(September 2023)

Each month All Things Amicus features an “Amicus Brief of the Month”—an amicus brief that was authored by other attorneys, and in my view, is especially persuasive or otherwise of particular interest. Although I do not necessarily agree with the arguments presented in an Amicus Brief of the Month, I believe that the brief is certainly worthy of consideration.

This month we feature the Supreme Court amicus brief that Melinda Kollross and Don Sampen of Clausen Miller, P.C. have filed in Loper Bright Enterprises v. Raimondo, No. 22-451 on behalf of the DRI Center for Law and Public Policy. The Court has granted certiorari to decide whether to overrule “Chevron deference” to federal administrative agencies’ interpretations of ambiguous statutory provisions, or whether to clarify that statutory silence on a subject is not equivalent to statutory ambiguity requiring deference.

The Loper Bright case involves the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884, which is administered by the National Marine Fisheries Service (NMFS). The Petitioners, which fish for Atlantic herring, are challenging an NMFS regulation requiring them to hire, quarter on board, and compensate, at-sea regulatory compliance “monitors.” Although the Act is silent as to whether industry-funded monitoring is permissible in the Atlantic herring fishery, NMFS not only interprets the Act as allowing it, but also contends that its interpretation is entitled to Chevron deference on the theory that statutory silence is the same as statutory ambiguity.

Most of the amicus briefs supporting the Petitioners address Chevron deference directly. For example, the brief that I filed on behalf of the Atlantic Legal Foundation argues that Chevron deference should not enable an agency to engage in unconstitutional regulatory activity. See ALF Argues No Chevron Deference For Unconstitutional Interpretations.

The DRI Center’s brief, however, takes a different tack. It urges the Court to decide the appeal in accordance with the major questions doctrine rather than the Chevron doctrine. Under the major questions doctrine, Congress is assumed not to have vested an agency with authority to regulate extraordinary or highly consequential matters involving major policy decisions in the absence of clear statutory authorization. The DRI Center’s brief argues that “the [major questions] doctrine squarely addresses the [NMFS] regulation seeking to standardize industry-funded monitoring in fishery management plans under the MSA. Because the major questions doctrine is dispositive, no occasion arises for review under Chevron.”

If you would like to suggest a future Amicus Brief of the Month—either one of your own or another—please email it to me at lawrence.ebner@capitalappellate.com.

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