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self-study / Appellate Practice

Amicus participation in appellate litigation: a guide

Johanna Schiavoni

Counsel, California Appellate Law Group LLP

Johanna is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts. She served as a law clerk to 9th Circuit Judge M. Margaret McKeown and Central District of California Judge Christina A. Snyder (ret.). She is the 2020 president of the San Diego County Bar Association.

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Amicus support (or opposition) can make a difference in your appeal. Too often, counsel overlook the importance of amicus curiae letters or briefs. Since the goal is to present your case in a complete and helpful way, and ultimately to persuade the appellate court to agree with your client's position, spend the time to evaluate whether support from amicus curiae, as a "friend of the court," could aid your cause. These considerations also will keep you from being caught off guard if amici weigh in for your opponent or with a neutral brief.

As a certified appellate specialist attorney, I have represented amicus curiae and parties in litigation that benefitted from amicus support. Here are my top strategic and tactical considerations for appellate and trial counsel -- and clients -- with high-stakes appellate litigation.

General Tips for Amicus Briefs

First, here are several initial considerations applicable to all potential amicus briefs.

1. Understand how amicus curiae can be helpful. Amicus briefing is intended to aid the court. So, consider -- what would be helpful in your case? Where can an amicus provide expertise or insight not otherwise presented by the parties? While parties may recruit or solicit amicus support, an amicus brief will not be credible if it reads like a "friend of the party" brief, rather than a "friend of the court" brief.

In substance, do not regurgitate the party briefs. Amici should present a new and different take on some issue of importance. Along these lines, amici also should take care not to repeat what is said by other amici. As I describe in more detail below, using an attorney to coordinate briefs by various amici can ensure you deliver an impactful and coherent overall message to the court.

2. The right to file amicus briefs is not automatic. Judges and justices -- and their law clerks and research attorneys -- read a lot of material and only want to review amicus briefs that will aid the court's decision in some way. Although amicus briefs are expressly allowed by U.S. Supreme Court Rule 37, Federal Rule of Appellate Procedure 29, and California Rules of Court, rules 8.520(f) and 8.200(c), the right to file as an amicus must be sought by permission. And some courts will rigorously analyze whether the proposed amicus brief is helpful in deciding whether to allow the brief to be filed.

3. Consider the stage of the case. When does amicus support make the most sense -- at the time you request review or when you argue the merits?

Although parties generally have an automatic right to appeal to an intermediate court, review by the highest federal or state court is only by permission. In a case where you are seeking review by a petition for certiorari (U.S. Supreme Court) or a petition for review (California Supreme Court), amicus support should elevate the conflict. Strong amicus briefs or letters can emphasize that your case is of widespread importance and is the right vehicle to take up the issue. By contrast, the absence of amicus support can have the opposite effect, i.e., of diminishing the case's importance. And, consider that amicus briefs arguing against review may not be good strategy because the absolute number of briefs can highlight the importance of the case.

When arguing the merits, an amicus brief should elucidate an important point at issue. Consider Grutter v. Bollinger, 539 U.S. 306 (2003), an affirmative action case before the U.S. Supreme Court. The decision quoted a particularly impactful amicus brief submitted on behalf of 29 high-ranking retired officers and civilian leaders of the military who advocated the benefits of a highly qualified and racially diverse officer corps from our nation's service academies and training programs, achieved through "race-conscious recruiting and admissions policies." Relying in part on that amicus brief, the court concluded that "to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity" and held that there remains a "compelling interest" in upholding the use of race or ethnicity as a factor in certain educational admission decisions. Id. at 331, 333.

4. Timing and coordination are key. Courts vary among the time to file an amicus letter or brief. In federal courts, filing deadlines may be as soon as seven days after filing of the principal brief being supported, whereas in California courts, the time to file generally is longer.

In my experience, amicus briefs have more impact when a party has a lawyer coordinating among potential amici to ensure the end result is a helpful brief or set of briefs. To that end, coordinating counsel should reach out to potential amici early in the strategic life of your appeal. Inquire about and understand the time required for a potential amicus to consider whether to file an amicus brief, obtain counsel to prepare the brief, recruit potential other signatories (individuals or entities), and secure final sign off before the brief is filed. This process can take weeks, if not months, especially for government entities or industry groups. Note, however, party counsel must understand the rules requiring disclosure of financial or drafting assistance, if provided.

5. Amici are not tied to discussing the facts or the law. One unique (and fun!) aspect of amicus briefing is that many of the rules that apply to party briefs do not apply to amicus briefs. For example, an amicus can cite or supply facts not in the record without seeking judicial notice. An amicus does not need to discuss the facts of the case or even the law -- and can assist the court in other ways. The key question here is -- what perspective or expertise can the amicus offer that will be helpful?

Types of Amicus Briefs -Helpful to Courts

Following are several areas where amicus curiae briefs can be particularly illuminating. On this score, carefully consider what information will help complete the story of the case and then consider who is in a position to clearly and credibly present the information.

6. Provide technical, scientific or specialized expertise. In cases with aspects beyond the typical purview of most appellate judges, amicus parties can shed helpful light on technical, scientific or specialized topics. The key is to explain the concepts in a manner accessible to the judicial audience, while presenting it in a neutral way supported by evidence. In Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004), a case adjudicating the right to scientific study of a specimen of human remains appropriately 9,000 years old, the 9th U.S. Circuit Court of Appeals referenced multiple amicus briefs discussing Native American burial traditions, tribal oral narrative traditions, and the scientific testing proposed to be done on the specimen. See id. at 870 n.8 & 882 nn.23, 24.

7. Employ the tools of social science. Social science can help a court by showing the impact and importance of a legal decision. In Brown v. Board of Education, 347 U.S. 483 (1954), in footnote 11, the U.S. Supreme Court cited to psychological studies showing that segregation of Black schoolchildren made them feel inferior, interfered with their learning, and had lasting negative impacts on them. Id. at 494 n.11. The court expressly relied on these studies in rejecting the "separate but equal" doctrine from Plessy v. Ferguson, and instead, reaching its landmark decision that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Id. at 495.

On the contrary, do not overreach. An ineffective (and even dangerous) amicus brief portends to understand social science, but provides incorrect data, overstates the results, or overreaches beyond its expertise. In a high-profile example where this proved problematic, an amicus brief in Shelby County v. Holder, 570 U.S. 529 (2013) offered voter registration data by race, which was incorrectly portrayed in the amicus brief. The Supreme Court's majority opinion cited a chart with the incorrect data, and after the mistake was later uncovered by an outside interest group, the court had to revise its opinion. See id. at 548.

8. Offer empirical data. Can an amicus present empirical data that will elucidate a key point? Perhaps an industry or advocacy group, a think tank, or academic experts can discuss research or data relevant to an issue in your case. In a recent case before the U.S. Supreme Court challenging the government's rescission of the Deferred Action for Childhood Arrivals immigration program, a group of businesses as amici offered estimates of the cost to employers of hiring and training replacement employees at $6.3 billion. See Dep't of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1914 (2020).

In another landmark case, Riley v. California, 573 U.S. 373 (2014), the Supreme Court struck down routine searches of cellphones seized incident to an arrest absent a separate search warrant. In reasoning that this warrantless invasion of privacy was not authorized by the 4th Amendment, the court discussed and cited data supplied by various amici curiae showing sparse evidence of "remote wiping" of cellphones prior to a search warrant being obtained (thereby undermining one of the state's justifications for warrantless searches), and discussing the "immense storage capacity" and vast types of information ("millions of pages of text, thousands of pictures, or hundreds of videos") stored on even the most basic cellphones. Id. at 389-90, 394.

9. Bring in the perspective of other jurisdictions or otherwise disparate groups. Another area ripe for amicus support is to present a comparative analysis of how other cities, states or countries address a complex legal or regulatory point. Consider also highlighting disparate groups who share the same view in your case. In Atkins v. Virginia, 536 U.S. 304 (2002), in striking down application of the death penalty against mentally retarded persons, the U.S. Supreme Court cited the amicus briefs of religious groups and of the European Union, who represented broadly different groups and countries all condemning capital punishment in those circumstances. Id. at 316 n.21.

10. Communicate the context. If the case is situated in a broader regulatory or commercial context, consider who can effectively communicate that context. On this front, I have represented amicus curiae who were highly regulated entities (e.g., skilled nursing facilities) providing perspective on how a court's decision would impact the industry, see Shuts v. Covenant Holdco LLC, 208 Cal. App. 4th 609 (2012), and a large chemical company offering its perspective on how the court's interpretation of commercial insurance policy language and development of principles around policy limit stacking would broadly affect policyholders. See State v. Continental Ins. Co., 55 Cal. 4th 186 (2012).

Consider the legal historical context as well. California's governor recently filed an amicus brief in a death penalty case discussing historical and current mechanisms in the jury trial system that lead to racially unequal application of the death penalty (jury venires, death qualification of jurors, and peremptory challenges) and advocating that requiring unanimity and proof beyond a reasonable doubt in the penalty phase of capital cases will reduce both racial discrimination and arbitrariness in jury decisions about capital punishment. See People v. McDaniel, Case No. S171393, Proposed Brief of Amicus Curiae The Hon. Gavin Newsom.

11. Utilize legislative history. Although legislative history can be discussed in party briefs, there may be reasons why it is not given in-depth treatment. In Prairie Rivers Network v. Dynergy Midwest Generation, LLC, 976 F.3d 761 (7th Cir. 2020), which raised complex issues under the Clean Water Act related to groundwater contamination, the 7th Circuit accepted several amicus briefs, including one that presented a historical analysis of Illinois groundwater regulation from before Congress' enactment of the Clean Water Act through the present day. Id. at 764. The appellate court noted the amicus brief provided additional "context to the cases cited by the parties and highlight[ed] the practical results if we decide to affirm." Id.

12. Share the practical implications. Appellate judges want to understand the practical implications of their decisions. They also want to avoid unintended consequences, which can birth more confusion or more litigation.

Good appellate strategy requires parties to think through the practical implications of the relief they are seeking. Yet, sometimes, the best messengers on the practical implications of a court's decision are the repeat players (e.g., government entities, industry groups, companies in highly-regulated industries). In Prairie Rivers Network, the Court of Appeals specifically identified as helpful an amicus brief's discussion of potential practical results of various outcomes. Id.

13. Present a different take on the issue. Amici also can be helpful by offering a different analytical approach to the issue, or by supplying factual or legal analysis insufficiently addressed by the parties. Consider, for example, if one factor is particularly important to the case but glossed over by the parties -- an amicus brief can address the point in more detail.

In sum, amici curiae should add something important to the landscape of the case. Take the time to present a concerted strategy with a coherent story that adds to the court's understanding of the issues. To be credible, the amicus must be expert in and accurately portray the information conveyed. Think of a Venn diagram -- an effective and helpful amicus brief will intersect with the case presented by the parties, but present a new and different area of expertise.

For an in-depth analysis of the strategic use and influence of amicus briefing at both the petition and merits stage in the U.S. Supreme Court, read "The Amicus Machine," by Allison Orr Larsen & Neal Devins, 102 Va. L. Rev. 1901 (2016). 

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