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Amicus Briefs: Questions & Answers

Amicus Briefs

by Sheilla Dingus

June 15, 2016

Amicus curiae, or “friend of the court” is a Latin term that has been highlighted recently in the press because of the submission of five amicus briefs in the Tom Brady / Deflategate case.
While the term may be a new one for those outside the legal profession, the concept is one that has been applied from ancient Roman law and one that made its way into English law in the 9th Century. According to Inside Counsel, while once rare, amici “are now filed in the majority of cases heard by the U.S. Supreme Court and many state supreme courts.”  This is also becoming truer of appellate cases in U.S. circuit courts and district courts as well.
Through social media I’ve received number of questions regarding amicus briefs – what they are; what processes are involved; what purpose they serve and what weight they hold, so – citing the experts – I’d like to address these things here.
 First of all it’s important to know that an amicus brief must be submitted to the court from a non-party accompanied by a motion for the court to accept it.  It may be submitted in the petition stage[1] of a case, such as those submitted to the Second Circuit[2] to support rehearing in the Brady case, or at the merits stage, after a hearing has been granted.

According to Inside Counsel:
“Amicus support at the petition stage is most helpful in demonstrating the widespread importance of the issue and need for immediate guidance from the court. . .At the merits stage, an amicus can fill one of three important roles: amplifying or supplementing the legal and factual arguments of the parties, or presenting an alternative argument not raised by any party; pointing out unintended consequences of a decision or rule on people or groups not party to the case; and communicating the importance of the case by their very presence.”
Time constraints apply in both cases. Certain rules and procedures differ slightly among higher courts, but the role of amicus briefs is for the most part, uniform throughout.

What is the purpose of an amicus brief?

In order for an appeals court to grant rehearing or rehearing en banc, at least one of two criteria established by Federal Appellate Rule 35b must be met:
(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or
 (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.
Except by the court’s permission, a petition for rehearing must not exceed 15 pages, and that’s where amici come in.  They can go a very long way in expanding on the relevance of the case submitted by counsel as the judges seek to determine if the case has demonstrated the required merits.
Five briefs (linked according to entry and ordered according to filing) were submitted in the Brady case from the following amici:
In varying ways, each of these petitioners built upon the case constructed by Olson and amplified the exceptional importance of rehearing and overturning the majority opinion rendered by Judges Parker and Chin.
Feinberg, the scholars of labor law and the AFL/CIO stressed the importance of due process and fair arbitration, as did the New England Patriots brief, which also emphasized their belief in the innocence of their quarterback.  The physics professors and engineers proposed the question of “whether an arbitration ruling interlaced with science should be upheld in the absence of scientific proof to support it.”
While amicus briefs can go a long way in supporting a case, especially at the petition stage, more briefs are not always better.  They should always seek to add pertinent, and perhaps overlooked information to the case, but should not create a resounding echo of the arguments already stated by counsel.

 

If the briefs add little to the parties’ or other amici’s arguments, and just add more pages of reading material for the judges and their clerks without offering additional assistance, they will not be well-received. . .
Amicus briefs often cite additional legal citations, policy considerations and social science data that courts find helpful. Amicus briefs, judges and court staff agree, should also be short (generally, 20 pages or less). It is important not to overstay one’s welcome as an amicus. . .Consider, too, the possibility of “strange bedfellows,” or groups that ordinarily do not agree or ordinarily might be on opposite sides of an issue, joining together in a brief.[3]

 

 

Who can or should file an amicus brief?

Technically any non-party could file an amicus brief with the court if done through proper legal channels; however this is typically left to authorities with pertinent supplemental information to add to the case.  Any brief which does not meet this standard risks the ire of the court.

Is it common for a litigant to solicit amici?

Absolutely.  While the solicitation of Kenneth Feinberg’s amicus brief was brought to attention by media, there is nothing unusual or improper regarding this solicitation. Consider this advice from Inside Counsel: 
The rise in the number of amicus briefs, and their importance to the highest courts’ consideration of a case on the merits (as well as to the decision to grant discretionary review in the first place), heightens the importance of parties obtaining solid amicus support for their petition and merits briefing…

 What about payment?

Typically payment for an amicus filing, while it may be requested by a litigant, should not be paid for by the same.  Most higher courts require amicus counsel to adhere to the Rules of the Supreme Court of the United States, and in this regard, Rule 37.6 states:
“that non-governmental amici “shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made such a monetary contribution to the preparation or submission of the brief. The disclosure shall be made in the first footnote on the first page of text.”
Even if payment for or ghostwriting a brief is not expressly forbidden, it compromises its independence and influence with the appellate court, and could lend cause for ethics concerns.
One might wish to note that all amicus briefs filed in the Deflategate case were in compliance with Rule 37.6 and contained this, or a similar footnote:

Amicus footnote

 

Is the court required to take amicus briefs into consideration? 

The short answer is, “no,” however, many highly respected legal scholars have differing opinions regarding their impact.
In a May 31, 2016 Sports Illustrated article, law professor, legal analyst, and Deflategate expert, Michael McCann, stated
…it is worth acknowledging that amicus briefs are of limited impact. . . judges have the discretion to completely disregard amicus briefs. For that reason, the amicus briefs. . .should be viewed with appropriate caution. 13 active judges on the Second Circuit will have an opportunity to review all of the amicus briefs, but these judges are under no obligation to factor them into their decision-making.
He went on, to add, however:
Still, amicus briefs filed on behalf of Brady can only help. . .the Patriots filing an amicus brief that expressed an interest adverse to the NFL was stunning and likely will be considered by the judges. The brief signed by the group of neutral scientists who contend Deflategate is completely explainable through Ideal Gas Law should also catch the judges’ attention, especially those who believe Brady has been treated unfairly. Similarly, the AFL-CIO and Feinberg briefs will supply more motivation for judges when it comes to granting Brady a new hearing.

How much influence do amicus briefs hold with the court?

As referenced above, the amount of influence exerted by amicus briefs  is highly debatable, however it seems that they can and often do impact a case in very significant ways.  Consider this excerpt from a January 2015 article by M.C. Sungalia: 
The [Supreme] courts’ citation of amicus briefs in their opinions has also increased. One study reveals that of all U.S. Supreme Court opinions published between 1986 and 1995, approximately 15 percent cited at least one amicus brief by name, and 37 percent referred to at least one amicus brief without citing or naming it.
Adam Chandler via scotusblog.com says, regarding certiorari-stage amicus briefs at the Supreme Court level between May 19, 2004 and August 15, 2007: “Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party,” and according to cocklelegalbriefs.com: “During the 2012-13 term, 70 of the 73 cases heard by the [Supreme] Court, or nearly 96 percent, attracted at least one Amicus Brief at the Merits stage…”
Another interesting point, brought out on Twitter, by respected sports law and gaming attorney Daniel Wallach, draws attention to the number of amicus brief submitted in the Second Circuit’s last granting of an en banc appeal:

So what’s the bottom line for Brady?

Since this is the primary concern for most of our readers, I decided to contact David Evans, an attorney with Boston law firm Murphy and King and an arbitrator on the panels of organizations that include the Court of Arbitration for Sport, the CPR Panel of Distinguished Neutrals, the American Arbitration Association and the International Centre for Dispute Resolution, whose opinion piece to the NFLPA was recently published in the Washington Post for his thoughts and expert evaluation.
Evans shared how he would rank the amici, in relation to relevance and impact of their briefs:
While everyone understands that Amici are generally not neutral (or even true “friends” of the court), the Pats’ brief is particularly self-interested. For this reason, it’s probably at the bottom of the helpfulness list. (Although they are part of the NFL, I wouldn’t consider them a typically motivated appellant given that they [would] prefer Brady to be under center against the Cards week 1.) The only real contribution of the brief is to highlight the irregularities with the Wells investigation, from an “eye witness’s” standpoint, and perhaps buttress the argument about the importance of the witness interview notes and Pash’s cross-examination.
I don’t believe the brief from the scientists will carry any weight because, ironically, the appeal is now about the arbitration process and not whether there was actually any offense to be arbitrated. We’ve gone from the Ideal Gas Law to a less than ideal arbitration.
Next up the list are the briefs of the labor law professors and Ken Feinberg. These argued persuasively that the case is abhorrent as a matter of basic arbitration law. The tricky part is convincing the court that the unusual circumstance of an “arbitrator” deciding the propriety of his own discipline per the terms of the CBA does not render the decision largely irrelevant as a precedent. Ordinarily, en banc is reserved for important cases potentially subject to repetition. But, as I attempted to say in my Washington Post article, the CBA did not bestow license for the Commissioner to run a crooked process.
Most important, in my view, is the AFL-CIO brief. This helps the argument that the decision could potentially affect millions of union workers, even those not as fortunate as Tom Brady and unable to protect their interests in the same manner. In other words, the case has broad and dangerous application.
The stakes are indeed high in this case.  As Evans states in his Washington Post piece:

David Evans Washington Post excerpt

 

Now we wait to see how this circus will play out – hopefully the amicus briefs submitted, in support of a strong case made by Theodore Olson will, be enough to turn the tide in this odyssey known as Deflategate. I for one hope so.  Perhaps one day, it will not be remembered so much as to how footballs came to be deflated, but how, through refining the arbitration process, it helped to bring about fairness and equity to not only NFL players, but people in all walks of life.

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Sincere thanks to David Evans for his contributions to this story

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[1] often cited as Petition for Writ of Certiorari, certiorari stage or simply cert, especially if in reference to SCOTUS

[2] Specifically related to the Brady case, per David Evans, “The various Amici briefs in the Brady case are unusual in the sense that they were submitted in support of an en banc/rehearing petition. Typically, Amicus briefs are filed in conjunction with the original appeal on the merits, which likely didn’t happen here because Brady prevailed at the district court level before Judge Berman.”

[3] http://www.insidecounsel.com/2015/01/05/the-ins-and-outs-of-amicus-briefing-the-increasing?slreturn=1466001303