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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.