Should I File an Amicus Curiae Brief?

Businesses and organizations are often interested in the outcomes of cases that they are not directly involved with—how a court rules could have a drastic effect on the way they must do business. This article contains all the information you need to know to decide whether to file an amicus curiae brief.

What is an Amicus Curiae Brief?

An amicus curiae brief is a persuasive legal document filed by a person or entity in a case, usually while the case is on appeal, in which it is not a party but has an interest in the outcome—typically the rule of law that would be established by the court in its ruling. Amicus curiae literally means “friend of the court.” Amicus parties try to “help” the court reach its decision by offering facts, analysis, or perspective that the parties to the case have not.

Parties must include all sorts of unexciting information in their briefs, such as the procedural history of the case, and they usually must address all the issues on appeal. An amicus party’s brief, by contrast, can choose a particular angle or argument and focus on it while the party briefs slog through details and necessities. An amicus party can make arguments that have not been made below and are not strictly confined to the trial court record and primary case law, and they often have more freedom to address broader policy concerns. Indeed, an amicus brief may often take the form of a sort-of Brandeis Brief that includes scientific information, statistics, or other non-traditional information.

This means that academic publications on the issue, empirical economist studies that may reflect on practical implications of the decision confronting the court, and an education on how courts in other states have decided the issue are all fair game in an amicus brief. Courts recognize that they do not make decisions in a vacuum, and will often, for example, value an association’s view of how a particular issue affects its members. Not surprisingly, trade associations are one of the most common filers of amicus briefs.

An amicus curiae brief can thus be a powerful and efficient advocacy tool. By getting straight to the point, they can catch the court’s attention with the best contribution they can make without breaking the bank in doing so.

Why Should I File an Amicus Curiae Brief?

Many groups or entities file amicus briefs, including trade associations. nonprofits, businesses, groups of professors, and government entities (yes, even the U.S. government files amicus briefs). The reason to file depends upon the case and your relation to that case, but often include the following:

• The court’s disposition of the case will affect you or your members (if you are an association, for example). An amicus brief is your opportunity to speak to the court on a matter that will affect you. This is probably the most common reason for filing an amicus brief.
• You are a think tank or other non-profit and your mission is to support a particular world view or educate the government and its players. An amicus brief is your opportunity to educate the court on an issue that you have studied extensively and that may advance your entity’s mission or values in society at large.
• You are an expert and you can educate the court. It is common for groups of academics or other experts to file amicus briefs when the decision may require understanding something from the experts’ field.

Of course, once you determine that you can help the court, you need to decide whether you want to spend the resources preparing an amicus brief. Here are some benefits you may not have considered:

• An amicus brief is a great marketing tool when utilized properly (and after filing). It shows you taking tangible action on an issue important to your customers, suppliers, members, donors, and even competitors. Amicus briefs can be written with fewer case citations and intricate legal discussion, so they are often more accessible to a non-lawyer audience. Entities that file amicus briefs in high-profile cases sometimes receive positive press coverage. Consider tapping into your marketing budget for an amicus brief.
• You can announce to the world that you are taking a position. This may be strategically useful in certain circumstances.
• You can educate the court on the particular case, but also educate it (and the parties) more broadly on the interests of your members or your company.
• For academics and subject-matter experts, an amicus brief may raise their profile in different communities. Perhaps an academic or other expert is interested in more expert-witness work; filing an amicus brief might be one way to let everyone know about their capabilities (or at least who they are).
• You are part of a similar case in the same or a different jurisdiction and the appellate court’s decision may be precedent—binding or persuasive—for your case.

Each case and situation is different, but if you become aware that you may have an interest in the outcome of any case on appeal, you should explore whether an amicus brief could benefit you.

• You can read more about the reasons for filing an amicus brief at The Antitrust Attorney Blog.

Bona Law’s attorneys have crafted and filed many amicus briefs in their careers, and Bona Law has filed many amicus briefs (US Supreme Court, Fourth Circuit, Eighth Circuit, Tenth Circuit, Ninth Circuit and the Minnesota Supreme Court, as examples). Some of our amicus briefs have been given significant attention by the court and parties, and some may have affected the courts’ ultimate decisions. If you are considering an amicus brief, please contact us today. 

You can learn more about our appellate litigation practice here.