Input from an amicus curiae can be invaluable to a court struggling with a difficult issue — as most matters pending before a High Court are — but can be counterproductive if not done properly or in the right situation.
Before tendering another brief to a busy court that reads an enormous amount of material contained in the parties’ briefs and appellate record, find out what a particular appellate panel may (or may not) want.
Obviously, this is more easily accomplished when the intermediate court is divided into divisions where the judges regularly sit together, but the information can be garnered even when panels are not pre-set. Some judges at the intermediate appellate level have expressed complete disinterest in amicus briefs, noting the parties can provide whatever is needed to decide the parties’ dispute at hand. But at courts of last resort, that type of resistance is not uncommon, since the justices are called upon to decide significant legal issues applicable to the public, not just the parties before them.
Of course, any submission must comply with the rules governing amicus submissions in the court before which you want to file your amicus brief. A comprehensive list* of all the state rules was collected by Sarah F. Corbally and Donald C. Bross in their: "A Practical Guide for Filing Amicus Curiae briefs in state appellate courts," (.pdf). But that was published in 2001 and, though useful as a starting point, must be updated. For example, this table references Rule 14 for my home jurisdiction, California, but this rule has been amended and renumbered; California’s current amicus rules are Rule 8.200 [Courts of Appeal] and Rule 8.520 [Supreme Court].
Next, figure out a way to articulate and contribute something significant that the parties did not include in their briefs.
Although there are occasions when a "me too" replication of a party’s brief is effective, that is usually productive only in garnering the court’s interest in taking the case. Generally, after the case is accepted and being briefed on the merits, an amicus needs to bring new perspectives to the court’s attention. Statistical information or data to show the potential impact of a court’s decision is often helpful in summarizing a particular point and directing the court’s focus.
A good amicus brief explains how a particular resolution will impact an entire industry, or why a change in the current state of the law is necessary to accommodate changing societal interests.
The American Bar Association’s website provides guidelines (.pdf) it uses when considering whether it will endorse an amicus brief. Although many other examples exist, the ABA’s list highlights universally applicable principles, which serve as reminders to assist you in being an effective advocates speaking on behalf of a "friend of the court."
*STAY TUNED: The Corbally/Bross table is referenced in several articles over the past decade, but does not appear to have been updated since its compilation. We will be updating the table and publishing it in this blog soon.