Author: Jarod Bona
An amicus curiae brief is filed by a non-party—usually in an appellate court like the US Supreme Court—that seeks to educate the court by offering facts, analysis, or a perspective that the party briefing doesn’t present. The term amicus curiae means “friend of the court,” and that is exactly what the parties that file these briefs are. They aren’t objective, but they are—without pay—helping out the court, like a friend might. Well, sort of.
Entities filing amicus briefs do so for a reason and that reason isn’t typically just court friendliness. In fact, as we will discuss below, there are many good reasons for someone to file an amicus brief.
Along with antitrust and commercial litigation, I’ve been an appellate litigator my entire career. I started out by clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis), then moved on to Gibson Dunn’s appellate group in Washington DC. So, as you might imagine, I’ve participated in many appellate matters. And without question some of my favorite briefs to write are amicus briefs. I’ve filed many of them over the years.
Indeed, at Bona Law, we have filed several amicus briefs on various topics (US Supreme Court (and here), Fourth Circuit, Eighth Circuit, Tenth Circuit and a couple with the Minnesota Supreme Court, which you can read about here and here and here).
From the attorney’s perspective what I really like about amicus briefs is that they invite opportunities for creativity. The briefs for the parties before the court include necessary but less exciting information like procedural history, standard of review, etc. Then, of course, they must address certain o necessary arguments. Even still, there is room for creativity and a good appellate lawyer will take a thoughtful approach to a case in a way that the trial lawyer that knows the case too well may not.
But what is great about writing an amicus brief is that you can pick a particular angle and focus on it, while the parties slog through other necessary details. The attorney writing the amicus brief figures out—with the client’s help—the best contribution they can make and just does it, as efficiently and effectively as possible.
Because the amicus brief should not repeat the arguments from the parties, the attorney writing the brief must develop a different approach or delve deeper into an argument that won’t get the attention it deserves from the parties. This is great fun as the attorney can introduce a new perspective to the case, limited not by the arguments below, but by the broader standard of what will help the court.
This means that the law review article that the attorney saw on the subject that hasn’t developed into case law is fair game. So is the empirical study from a group of economists that may reflect on practical implications of the decision confronting the court. Or the attorney might educate a state supreme court about what other states are doing on the issue. Often an association will explain to the court how the issue affects their members.
The point is that amicus briefs present opportunities to develop issues in ways that party briefs rarely do. Indeed, that is partly why they are valuable to courts.