How To Draft An Amicus Brief That Actually Gets ReadNovember 22, 2022
“Writing amicus curiae (‘friend of the court’) briefs is my favorite activity as an appellate lawyer,” Capital Appellate Advocacy founder and Atlantic Legal Foundation Executive Vice President & General Counsel Larry Ebner explains at the beginning of his recent article, How To Draft An Amicus Brief That Actually Gets Read. Published by the Federation of Defense & Corporate Counsel in its Insights magazine, the article, which draws on Larry’s decades of experience as an appellate litigation specialist, offers “three overarching pieces of advice that are easy to understand but can be difficult to implement” when an attorney is called upon to write an amicus brief:
- Follow the rules.
- Say something different.
- Use an appropriate writing style.
The article elaborates on each of these points.
Larry indicates, for example, that “Avoiding duplication of the arguments presented in the supported party’s brief—and to the extent possible, in other amicus briefs—is the single most important way an amicus counsel can increase the likelihood that his or her brief will get read.”
The article also explains that “Amicus briefs are different from trial court briefs, both in content and style. There is an art to drafting effective amicus briefs—a skill, like trial skills, acquired though years of practice.
As to amicus brief rules, the article notes several potential procedural pitfalls. For example, an attorney who intends to file a Supreme Court amicus brief in support of a pending certiorari petition must give the parties’ counsel at least 10 days advance notice.
Since joining the organization’s leadership team in September 2020, Larry has authored more than 20 amicus briefs for ALF in the Supreme Court, federal courts of appeals, and state appellate courts.
“ALF is fortunate to have the benefit of Larry’s appellate litigation experience and brief-writing skills in pursuing ALF’s mission of advocating for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education,” said ALF Chairman & President, Dan Fisk.
Larry, who is a Fellow of the American Academy of Appellate Lawyers, recently attended his Harvard Law School class’s 50th reunion.
Additional amicus brief articles written by Larry Ebner include: