United States: Three Keys To Amicus Brief Success

Last Updated: August 30 2019
Article by Akiva Shapiro

Amicus brief writing is all the rage. The U.S. Supreme Court alone  now receives between 600 and 1,000 amicus briefs every year—an average of 7 to 12 for each argued case, nearly double the number filed in 1995, and eight times the volume in the 1950s. Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901, 1902 (2016). Federal circuit courts and state appellate courts—and even trial courts—are also seeing more and more amicus briefs. How can counsel filing amicus briefs stand out from the crowd and make an impact? Based on experience, I've identified three keys to preparing impactful amicus briefs: pairing with the right client, making the right kinds of arguments, and mustering the right types of materials.

The Right Client

Pairing with the right client is essential for making an impact with your amicus brief. Most importantly, amicus parties need to match well with the case: What special expertise or experience does this particular client bring to this particular case? There should be some unique perspective or knowledge that your client can add. For example, when we represented the National Association of Criminal Defense Lawyers (NACDL) in Vartelas v. Holder, which challenged the retroactive application of a statute restricting immigrants' right to travel abroad for short periods, we leveraged our client's expertise to make arguments about the practical functioning of and impact on the plea bargain process. The "interest of amici" section of the brief should then be tailored to highlight your client's specific expertise and experience directly relevant to the case.

Briefs from parties who are known and respected by the court are most likely to be read closely and taken seriously. In addition to the United States, these prominent players include organizations like the ABA, ACLU, AFL-CIO, Cato Institute, Institute for Justice, NACDL, and the U.S. Chamber of Commerce. Adam Feldman, Amicus Policy Success in Impactful Supreme Court Decisions, Empirical SCOTUS (Feb. 19, 2018). In addition, well-respected authorities taking a counterintuitive position— such as former law-enforcement officers writing in support of a criminal defendant—will often grab the court's attention.

If you are looking to pair with a client and the case seems like a fit for one of these groups (or others with similar credibility), consider reaching out to see if they are interested. And if you are already representing a client who doesn't have such name recognition, you should also consider reaching out to see if a leading organization is interested in joining your client's brief. If the content of the brief is compelling and matches well with one of these groups' policy positions and expertise, they may agree to sign on. If so, it's a win-win for you, your client, the larger organization, and the court.

The Right Arguments

The amicus context raises special considerations when trying to craft the best possible arguments. It is important to think (and argue) like an amicus, not a party.

It is crucial to avoid arguments that are redundant with those made by the parties themselves or other amici. Supreme Court Rule 37, for example, instructs that an amicus brief that does not raise matters beyond what the parties have addressed "burdens the Court" and is "not favored." Raising arguments made by other amici will also add little value for the court. Given these considerations, amicus counsel should coordinate with counsel for the party they support and counsel for allied amici. Communication between counsel enables the creation of a coordinated briefing strategy and the avoidance of redundancy.

What types of arguments should amici make in their briefs? Broadly, value-additive amicus arguments that successfully leverage your client's expertise and credibility usually fall into three major categories: (1) original legal, constitutional, or historical arguments supporting a position or proposition advanced by a party, (2) amplification of an argument raised by a party with discussion of additional implications, and (3) alternative legal routes to reaching the desired case outcome.

With regards to the first category, there are often additional arguments or materials that support a claim made by one of the parties. Perhaps the main party has argued for a particular interpretation of a constitutional provision but has not raised the argument that their interpretation is supported by an intratextual reading alongside another provision. Or maybe a party's statutory interpretation claim is further supported by an overlooked canon of interpretation. Additional historical, empirical or legal materials too, such as an overlooked piece of legislative history, might bolster a party's position, as discussed in more detail below.

Second, an amicus brief can amplify a party's argument by pointing out additional legal or practical implications. A ruling for one side may raise practical challenges in application or enforcement. There might also be additional policy implications— negative externalities or economic impacts—in a different area of law or on different parties. For instance, in Zivotofsky v. Kerry, involving whether the federal Executive or Legislative Branch controls the recognition power, we represented a bipartisan coalition of Members of the U.S. House of Representatives arguing that a broad ruling for the President would hamper the ability of Congress to legislate in critical areas touching on foreign affairs. The decision came down in the Executive's favor on the narrow recognition power issue, but the majority opinion expressly affirmed the robust role of Congress in foreign affairs more broadly, consistent with our arguments.

Third, there may be alternative grounds for deciding the case that the parties gave short shrift or did not raise. While difficult to pull off, providing the court with a different way to reach the result your client wants can be case-determinative. In the key Affordable Care Act case, NFIB v. Sebelius, an amicus brief on behalf of constitutional law scholars focused solely on the argument that the individual mandate should be construed as an exercise of Congress's taxing power—the precise grounds on which the court eventually upheld the mandate.

Finally, be sure to frame the brief around your unique arguments. Unlike the main party's brief, which will lay out the procedural history and methodically work through the legal issues in the case, the starting point for your brief should be its novel, value-adding perspective. It should jump right into these points and stay disciplined and focused on them throughout. Think about it as entering the case midstream—you don't need to get the court from the dock to where your argument begins a hundred miles downriver because the main brief already did that. You should pick up the argument only where your piece of it begins.

The Right Materials

Lastly, amicus counsel should pay particular attention to the authorities they cite. Highlighting materials the main parties in the case have not brought to the court's attention is essential in adding value and getting noticed. Three types of authorities are worth special mention.

First, empirical or other economic/sociological evidence, particularly if drawn from non legal fields or from sources other than court decisions—such as demographic research, economic studies, or government-issued crime statistics—can be useful in providing the court with the facts it needs to reach the decision you want. These materials can support novel arguments about the practical impacts of potential decisions, and are often cited in court opinions. For example, in Padilla v. Kentucky, which concerned the obligation of criminal defense attorneys to advise their clients about deportation risks, we represented legal ethics and criminal law professors and submitted voluminous evidence not cited by the parties regarding the current practices of lawyers in warning clients about deportation consequences; this portion of our brief was quoted by the Supreme Court in the majority opinion.

Second, additional historical material can be very important to the court, especially in cases involving constitutional issues. For instance, in the earlier Zivotofsky case, Zivotofsky v. Clinton, we represented a bipartisan coalition of Senators and Members of the House of Representatives and presented significant historical evidence not cited by the parties in tracing the development and congressional centralization of passport powers from the Founding through the 20th century. The majority opinion resolved the political question issue favorably for us and specifically noted the involvement of Members of Congress as amici.

Finally, legal materials overlooked by the parties—like relevant statutes and cases, especially Supreme Court cases with relevant dicta—can be compelling. In Vartelas v. Holder, for example, we cited cases discussing the fundamental right to travel—an issue not extensively briefed by the parties themselves—and these cases were later cited in the Supreme Court's opinion.

By connecting with a client whose expertise fits the case, choosing appropriate arguments that leverage the client's experience and knowledge base, and drawing from original source materials not mustered by the parties, amicus counsel can ensure their briefs are not lost in the crowd, but actually impact the court's decision—allowing you be a true friend of the Court.

Previously posted in the New York Law Journal.

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions