Three BIG Amicus Brief Mistakes

By Lawrence Ebner, Founder, Capital Appellate Advocacy PLLC

Published in Friday Fives, Federation of Defense & Corporate Counsel

Filing amicus curiae briefs is a well-accepted part of practicing before the Supreme Court, federal courts of appeals, and many state appellate courts. If you really want to be a “friend of the court” — if you want your amicus brief to actually get read and persuade or inform the court — here are 3 major mistakes to avoid:

Mistake # 1 — Don’t follow the rules.

This is an obvious mistake, but one often made by lawyers whose experience writing amicus briefs is limited.

The Supreme Court has a separate set of rules for amicus briefs. Sup. Ct. R. 37. So do the federal courts of appeals. Fed. R. App. P. 29. Most circuits also have their own local rules concerning amicus briefs. These detailed rules cover format, content, and more.

For example, one big pitfall to avoid is Sup. Ct. R. 37.2. It requires that all parties’ counsel of record receive at least 10 days advance notice of your intention to file an amicus brief in support of a pending cert petition. Also, the Supreme Court no longer requires consent or a motion for leave to file a non-governmental amicus brief. But this is still the requirement in all federal courts of appeals and most state appellate courts.

And both the Supreme Court and federal courts of appeals require amicus counsel to indicate whether a party, or party’s counsel, has helped to author or finance the amicus brief in whole or part. An amicus brief lacking this disclosure will not be accepted for filing.

Mistake # 2 — Clutter your brief with subheadings & substantive footnotes, and don’t stop writing until you reach the word limit.

You want your amicus brief to get read. But you are competing for the court’s attention with the parties’ own briefs, and often, with other amicus briefs. So you need to make your amicus brief an easy read: Keep it short, well under the word limit. Make it visually appealing, and pique the court’s interest, by limiting the brief to just 2 or 3 major argument headings and only 1 level of subheadings. And if it’s worth saying, put it in the text, not in footnotes (even if you use footnotes for case citations).

Mistake # 3 — Pretend that you are representing the party that your amicus brief supports.

This is probably the BIGGEST mistake that the author of an amicus brief can make. Simply put, the mistake is to submit an amicus brief that duplicates the legal arguments being made by the party that you are supporting.

Instead, for your amicus brief to get read and be persuasive, SAY SOMETHING DIFFERENT!

This admonition is built right into the Sup. Ct. R. 37.1. It states that “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

Your brief can address the same legal arguments as the party you are supporting, but drill deeper (for example, by discussing legislative purpose and history in a statutory construction case, or additional relevant case law). Or your brief can add new legal arguments on the questions presented, or practical or policy perspective on the importance or impact of the legal issues in the case. But if you file a “me-too” brief that essentially repeats the arguments made in the brief filed by the party you are supporting, it probably won’t get read.

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

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