Amicus curiae briefs play a significant role in appeals throughout the country. From state appellate courts to the U.S. Supreme Court, judges increasingly rely on the perspectives of amici to inform their opinions. According to the American Bar Association, over a third of U.S. Supreme Court opinions are directly influenced by amici, and the same is true for a large majority of state supreme court opinions. Given the prominence of amicus briefs, your organization should consider whether to adopt an affirmative amicus strategy to favorably influence legal precedent affecting your industry. With the U.S. Supreme Court reconvening this month, a trio of attorneys from Wheeler Trigg O’Donnell remind you that now is an excellent time to evaluate your company’s amicus strategy or begin developing one.
Wheeler Trigg O’Donnell partners Frederick R. Yarger and Theresa Wardon Benz and associate Daniel N. Nightingale co-authored this article.
An amicus, or “friend of the court,” brief is filed by a non-party to a lawsuit, usually as part of an appeal and typically in support of one side or the other. Why should a court or litigant care what a non-party has to say? What value does an amici add to the court’s decision-making process?
The Supreme Court’s rule for amicus briefs provides a ready answer: “An amicus curiae brief that brings to the attention of the court relevant matter not already brought to its attention by the parties may be of considerable help to the court.” An amicus brief can offer a unique perspective that may move the needle in favor of the supported party or provide important clarifications on complex legal or factual issues.
Sophisticated litigants frequently enlist the aid of one or more amici to improve their chances of success on appeal. Sophisticated organizations, meanwhile, know that by filing amicus briefs, they can influence legal precedent to improve the legal landscape in which they operate. For example, the U.S. Chamber of Commerce Litigation Center, one of the most prominent business-focused amici, files dozens of amicus briefs in the U.S. Supreme Court each year and dozens more in other federal and state courts.
The power of an amicus brief comes in part from its flexibility. While the direct parties’ briefs are subject to strict requirements and restrictions, amici are often free to explore issues without the same constraints. For example, parties are confined to a set number of words for their briefing and must dedicate a substantial portion of those words to technical requirements, like explaining the case’s factual and procedural background, outlining the standard of review and explaining the precise relief requested. If the parties argue points not raised below or not supported by the record, they do so at their own risk,—,the court is free to ignore these points as falling outside the scope of the appeal.
Amici have far more flexibility. In the U.S. Supreme Court, for example, an amicus brief need only contain the identity of the amicus, its interest in the case, a summary of the argument and the argument. Further, amici are not limited to the formal record before that court. They can make arguments that were never raised by parties and rely on extrinsic evidence. This gives amici the ability to provide a perspective that may be lacking — for example, data showing how the court’s ruling could affect a business or industry and how it may affect future cases. Finally, some amici will often have much greater subject matter expertise than the litigant. This is particularly important in highly technical or specialized areas of law, where judges and staff may need the most assistance ensuring the court’s decision reaches the right result and does not have unintended consequences in future cases. The insights these amici offer may compensate for points a litigant overlooks or develops insufficiently, bolstering arguments in ways the litigant could not.
The value of an amicus strategy
Amicus strategy is perhaps most valuable for the opportunity it affords corporations and other organizations to influence precedent. If your company is not a party to a particular case, the court’s ruling may not bind your company directly. But the precedent the court sets can have a sweeping impact on your company (or your entire industry) in the future. The rule the court adopts in your competitor’s case today could influence, if not dictate, the outcome in your case tomorrow.
For this reason, amici pay particular attention to U.S. Supreme Court cases that will bind all federal and state courts across the country. But decisions from other courts can be just as important. If your company operates exclusively in California, for instance, you undoubtedly have a strong reason to advocate before the U.S. Court of Appeals for the Ninth Circuit and California appellate courts in cases that may affect your business.
But you should also consider the impact of cases outside California. If California or Ninth Circuit law is silent or inconclusive, those courts will often look to another state or circuit for guidance. To that end, your California company might consider filing an amicus brief in a significant, precedent-setting case before the Sixth Circuit, the Texas Supreme Court or the Colorado Court of Appeals. Doing so may be your best chance to shape legal precedent when it is first being formulated, before the legal issue finds its way to your jurisdiction. This rationale applies with more force the more states in which your company operates.
An amicus strategy can generate additional benefits beyond the strictly legal. First, it can raise your organization’s profile — assuming you respect the role of amici and carefully consider whether your views will truly assist the court. Amicus briefs demonstrate to your customers, shareholders and other stakeholders that you are taking concrete steps to advance their interests. Compelling amicus briefs can even generate press coverage that portrays your company in a positive light and illustrates your organization’s role as an industry leader. To be sure, you should never improperly file an unhelpful amicus brief just to attain these benefits, but such attention often flows naturally from a properly filed brief that assists the court with the issues before it. A recent amicus brief from the satirical news organization The Onion illustrates this point, having drawn widespread acclaim from news powerhouses like The Washington Post, CNN and Fox News while also showcasing the importance of the issue for the court.
Second, amicus briefs help educate courts not only about the issues at hand but also about your company and its mission, values, products and services. To the extent you become a repeat player before a particular court, this familiarity can enhance your status and make you a more credible advocate in the court’s eyes over the long term. Groups like the U.S. Chamber Litigation Center and many industry-specific organizations are frequent amicus filers that have built significant credibility through consistent amicus strategies.
Implementation of an amicus strategy
If your organization could benefit from an amicus strategy, but you wonder where to begin, consider your industry’s trade and issue organizations. These groups routinely help companies engage as amici and coordinate interested organizations and groups to support common causes. The trade organization for your industry likely already has an amicus structure in place to watch for cases that could have widespread effects on companies like yours. It may also have a bullpen of amici and counsel willing to help when a case involving your organization goes on appeal.
The starting point for a productive amicus strategy is not setting up “all state, all federal” alerts on Westlaw or LexisNexis to notify you every time a potentially relevant case arises (although, if you have the resources, you can certainly do that). Reach out to your own trade groups to ask about their existing amicus framework. Becoming an amicus may be as simple as plugging yourself into that framework, receiving notifications when relevant cases arise and volunteering to contribute when doing so is worthwhile.
Enlisting an amicus brief, meanwhile, can be as simple as submitting a request for support and asking the trade group to help coordinate. Generally, if you are a contributing member to a trade organization and supportive of their amicus strategy, the organization is more likely to go the extra mile to obtain amicus support should your business need it on appeal.
Unlike trade organizations that focus on particular industries, issue organizations focus on particular issues or bodies of law. For example, the Product Liability Advisory Council monitors products liability cases; the Professional Liability Defense Federation does the same for professional liability; the American Antitrust Institute does the same for antitrust; and so on. These organizations cover the waterfront and can play a useful role in building your amicus strategy, whether as a party or potential amicus.
Identify organizations that address the issues most important to your company and make connections before you have an issue on appeal that could benefit from amicus support. For many issues, the timeline for filing an amicus brief is quite short, so it is helpful to have an existing network in place.
Common, effective strategies for amicus briefs
Effective amici typically employ several strategies to maximize influence and persuasion before an appellate court. One of the best strategies, for example, is to leverage your company’s expertise and experience to explain the legal or practical effects of a court’s ruling on a particular area of law or industry — particularly a technical area that would benefit from additional explanation. This approach capitalizes on courts’ concerns for the broader implications their decisions may have.
This strategy was employed effectively in Kirtsaeng v. John Wiley & Sons, Inc., a U.S. Supreme Court case decided in 2013. The question in the case was whether someone who purchases a copyrighted book printed abroad can resell it without the copyright owner’s permission. A diverse group of library associations, book sellers, technology companies and even consumer-goods retailers argued across several amicus briefs that if the court said “no,” its holding would devastate their industries, preventing them from reselling not just books but all kinds of copyrighted consumer products. These amicus briefs had a profound effect on the court. It concluded that the “practical problems” the amici identified were “too serious, too extensive, and too likely to come about for us to dismiss them as insignificant” and ultimately adopted the position the amici advocated.
This is not the only way an amicus can influence a court’s decision. Other common, effective strategies include:
- Supplementing or elaborating on legal arguments that received minimal or no attention in the main briefs. This can be effective if the area of law at issue is complex and the parties’ briefs, due to space constraints, have been forced to overlook an important nuance.
- Providing empirical data on important factual points not reflected in the record. This is often called a “Brandeis Brief” because the strategy was pioneered a century ago by Supreme Court Justice Louis Brandeis when he was in private practice.
- Clarifying complex factual or legal issues in which the amicus has expertise, a particularly useful function when a case involves highly technical or scientific facts or a complicated statutory or regulatory regime.
In addition to its more substantive benefits, an amicus brief can also send a powerful signal to the court, demonstrating that a party’s position has widespread support in the relevant industry. Though probably not as impactful as the quality of the amicus briefs, courts will naturally account for the quantity of support for one side or the other in reaching their conclusions, sometimes even doing so expressly. For example, in a U.S. Supreme Court case from the 2021 term that reviewed a state law governing disclosure of charitable donations, the Supreme Court explained that “[t]he gravity of the privacy concerns” was “underscored by the filings of hundreds of organizations as amici curiae” by organizations that “span the ideological spectrum.”
A closing note of caution: File an amicus brief only when you have something new to say. Courts frown on amicus briefs that simply repeat or repackage the arguments in the main briefs. The Supreme Court specifically warns that such “me-too” briefs only burden the court. Redundant briefs are actively disfavored, are not worth the price tag for your organization and should be avoided. But if you do have something new and meaningful to say, add your voice. A persuasive amicus brief is one of the few ways your organization can directly influence the legal issues critical to your continued success in your field or industry.
Frederick R. Yarger, the former solicitor general for the state of Colorado, has argued dozens of cases before appellate courts around the country, including the U.S. Supreme Court. He is a partner at Wheeler Trigg O’Donnell.
Theresa Wardon Benz represents clients such as Ford, Michelin and Whirlpool in nationwide high-stakes appeals, litigation and trials. Prior to entering private practice, Theresa served as an appellate clerk to Neil M. Gorsuch, then of the Tenth Circuit Court of Appeals. She is a partner at Wheeler Trigg O’Donnell.
Daniel N. Nightingale has briefed appeals in courts across the country, including the Supreme Court and four federal circuit courts. One of his amicus briefs was quoted in a 2022 Supreme Court concurrence. Daniel is an associate at Wheeler Trigg O’Donnell.