Am I a Friend of the Court?

by James Parker

Everyone wants to be a friend of the United States Supreme Court—in Latin, an “amicus curiae.” Though amicus briefs to the Supreme Court used to be rare, today it is not unusual to see cases with more than 100 amicus briefs. And in its last term, the Supreme Court cited amicus briefs in more than half of its decisions.

But that trend has not necessarily filtered down to the lower federal courts or Texas state courts. And that’s ironic, because those courts are arguably more in need of amicus briefing than is the Supreme Court. The Supreme Court has up to 53 law clerks, and it decides only about 60 cases each term. So, it has the time and staff to do all the research and analysis a case might need. In contrast, lower federal courts and state courts have smaller staffs and much larger dockets.

This is a phenomenon that has not escaped the notice of the judges. In various forums, justices on the Texas Supreme Court have lamented the lack of amicus briefing that is filed in that court. We often think that judges probably have quite enough to read, thank you very much. But no—they’re actually asking for more.

So hearing that instruction, perhaps you are now asking yourself: should I too be a friend of the court?

Who can be an amicus? So here’s the thing: anybody can file an amicus brief. Typically, an amicus will favor one side or the other in a dispute. But some amici simply have an interest in an area of law and its development (for example, Prof. Ron Beal at Baylor School of Law is a serial amicus in administrative-law cases).

The effectiveness of an amicus has less to do with who the filer is than what the filer has to say.

What does an effective amicus have to say? The parties in a court of appeals or Texas Supreme Court case typically have capable counsel who have summarized the evidentiary record and analyzed the relevant legal authority. So, except in rare instances, it is not useful to the court for an amicus to make a party’s primary legal arguments or delve into the record on appeal. Most of all, an amicus should not appear to be just a mechanism for a party to evade the word limits on its brief.

• Say something new: While the parties will generally focus on the facts and law impacting the particular case and the parties they represent, an amicus can provide additional information and context. Importantly, an amicus is not limited to the evidentiary record developed in the trial court. An amicus brief can provide additional information from outside reference sources, including government agencies, industry publications, and scientific journals. Or an amicus brief can provide additional legal analysis as to the historical development of a legal rule, the rule followed in other jurisdictions, or unique assessment of a particular precedent (e.g., where the amicus was a party in a prior case cited as authority).
• Provide expertise: An amicus that has unique industry knowledge or scientific expertise can be particularly helpful to a court. And because amicus briefs are generally viewed as being somewhat less formal than the parties’ briefs, photos and diagrams are more common and can aid in the understanding of complex technical subjects.
• Explain the consequence of a decision: The existence of an amicus can reveal that a decision will impact others beyond the parties to the particular lawsuit. And within its briefing, the amicus can identify the real-world consequences that judges without industry knowledge might not otherwise foresee.

When should an amicus brief be filed? In federal court, an amicus must obtain leave of court to file a brief or else have the consent of the parties. The request for leave of court along with the amicus brief itself must be filed no later than 7 days after the principal brief of the party supported by the amicus. See Fed. R. App. P. 29(6).

State court is more lenient. The Texas Rules of Appellate Procedure do not require an amicus to obtain leave of court, nor do they impose any deadline for filing an amicus brief. But as a practical matter, an amicus wants its brief to be filed at a time to maximize its impact. That necessarily depends on the stage of the appeal, but we would broadly advise that an amicus brief should be filed not long after the parties’ briefs on the merits. At the very latest, the amicus would want to file its brief a month ahead of oral argument to allow the justices time to evaluate its points and add it into their oral-argument preparation.

What are the requirements for an amicus brief? In federal court, an amicus brief must comply with the rules governing a party’s brief. See Fed. R. App. P. 29(4). In addition, the amicus brief must include certain disclosures, such as the identity of the amicus, its interest in the case, and its authority to file. See id.

State courts have similar rules requiring disclosure of the person or entity on whose behalf the brief is tendered and the fee paid for preparing the brief. See Tex. R. App. P. 11. As in federal court, the Texas Rules require an amicus brief to comply with the briefing rules for parties. See id. However, in practice we have noticed that the state courts are more lenient on the briefing requirements for amici than are the federal courts.

How does one file an amicus brief? To meet the formal requirements for an amicus brief and to maximize the effectiveness of the points raised by it, we would recommend that a potential amicus consult with an experienced appellate lawyer. The lawyers at Lloyd Gosselink have decades of experience in federal and state courts of appeals, and can help you decide whether an amicus brief would be appropriate in a given case.

James Parker is a Principal in the Firm’s Litigation and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact James at 512.322.5878 or jparker@lglawfirm.com.