United States: Make Your Amicus Briefs Count

Last Updated: March 21 2017
Article by Adriana Gardella

When considering whether an amicus brief may benefit your case, it pays to remember that the Latin term amicus curiae, after which amicus briefs are named, means "friend of the court." An amicus brief that actually helps the court decide an issue has value. Unfortunately, not all amicus briefs fall into this category.

To learn what makes the difference, I spoke with Carlton Fields shareholder and former Florida First District Court of Appeal Judge Peter Webster. During his 20 years on the appellate bench, he authored hundreds of opinions, involving virtually every area of the law. Today, that decision-making experience informs his approach to amicus briefs.

Q: How commonly are amicus briefs filed?

Mr. Webster: Historically, at least through the 1970s, they were largely limited to the U.S. Supreme Court. Beyond that, they were pretty rare. Then, gradually they started being filed in important cases in the highest courts of various states. In the last 10 to 15 years, amicus briefs have found their way into state intermediate courts as well, and we're seeing many more of them today, particularly in high-profile groundbreaking cases involving novel legal issues.

Q.: What is behind the increase?

Mr. Webster: A combination of factors. First, society has become much more litigious in the last 15 to 20 years. In the past, businesses and other entities would look to legislatures to address and resolve problems involving important public policy issues. Now, more and more, that is happening in the courts. Second, interest groups have realized that they may be able to play a role in judicial policymaking by having their positions presented to courts deciding issues that have a particular impact on them.

Q.: How do you define 'interest groups?'

Mr. Webster: I use the term in a broad sense to include anyone who might have an interest in a particular issue before the court.

Q: Can you give an example?

Mr. Webster: For instance, the United States military filed a very effective amicus brief in an affirmative action appeal before the Supreme Court explaining how diversity in college admissions ultimately strengthens diversity in U.S. military leadership.

Q: When in the litigation process are amicus briefs filed?

Mr. Webster: Typically, they're part of the appellate process but from time to time they are filed at the trial court level when there is an especially difficult technical or scientific issue, or one involving a particular industry segment.

Q: How are they initiated?

Mr. Webster: Either the litigant reaches out to the interest group, or the interest group reaches out to the litigant. More and more frequently, the interest group is reaching out.

Q.: Procedurally, how do the amici get involved?

Mr. Webster: In Florida, a motion for leave to file an amicus brief has to be filed, and it must state the particular issue the moving party wants to address, why the movant feels it can help the court decide the case, and whether all of the parties have agreed that the movant may file the brief.

Q: Do the parties typically agree?

Mr. Webster: Not infrequently, the party on the other side will object to the filing of the amicus brief. But the court generally will do what it feels is appropriate regardless of any objection. I should also note that it's preferable for the movant to attach a copy of the proposed brief to the motion. That way, the court can see whether it is likely to be helpful.

Q: As a judge, how did you determine whether an amicus brief would be helpful?

Mr. Webster: I was much more inclined to grant motions that attached briefs that seemed to present a different insight into the problem, as opposed to what I used to call 'me too' briefs. A 'me too' brief simply parrots the position of the party it supports. For example, if the plaintiff is the appellant, you would get a brief from the plaintiff, followed by a motion by the plaintiff's bar organization asking for leave to file a brief supporting the plaintiff's position. That brief would almost always simply echo the plaintiff's position. The same goes for defense-oriented legal entities, which might seek leave to file an amicus brief that essentially parrots the defendant's position. Appellate judges are generally busy and dislike reading the same thing over and over.

Q: How would you categorize most of the amicus briefs you saw as a judge?

Mr. Webster: Most, about three-fourths, of what I saw fell into the 'me too' brief category. But I think that is changing, particularly in the highest courts of the states. While the Florida Supreme Court still gets the routine 'me too' brief in important cases, it also gets insightful briefs from entities with a particular interest or expertise that present a point of view the court would not likely get from one of the parties.

Q: Can you describe a case where you think an amicus brief provided helpful information to the court?

Mr. Webster: In a recent case, we represented an attorney who had been convicted on Florida RICO and gambling charges, which were based on his advice to his clients that they could legally run Internet cafes. We solicited amicus briefs from the American First Amendment Lawyers Association and the National Association of Criminal Defense Lawyers. Their briefs explained that allowing our client's conviction to stand would have a chilling effect on the ability of lawyers and their clients to communicate freely with each other. We won the case, securing reversal of our client's convictions. I think the amicus briefs had a meaningful impact on the decision by the Fifth District Court of Appeal.

Q: How can lawyers avoid annoying judges with amicus briefs?

Mr. Webster: The rule requires it, but first be sure to explain why the client for whom you are filing the amicus brief has some special insight to share with the court that will help it decide the issue. Often, lawyers submitting amicus briefs don't give as much attention to this as they should. Second, keep the brief as concise as possible. Adhere to the 20-page limit — and don't feel you must submit 20 pages just because you can.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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