Maximize the impact of amicus support

Amicus support can be a powerful tool when it is deployed effectively. For the parties, mustering amicus briefs can be the most persuasive way to alert an appellate court to the real world consequences of a potential decision. Where review is discretionary, an outpouring of amicus support may convince the court to take the case. And for nonparties who may be affected by the outcome of a case, filing an amicus brief can be an important method of damage control - a way to protect their own interests or to shore up a position that has not been adequately explained in the parties' briefs.

While the specifics of how to prepare an effective amicus brief vary by case, there are several rules of thumb that apply across the board, and that will maximize the impact of any amicus effort. They include:

Get involved early.

Amici routinely submit briefs in cases that the California or U.S. Supreme Court has already agreed to hear. But amici can also make their voices heard at an earlier stage: when a court is deciding whether to grant a petition for discretionary review. Petitions for California or U.S. Supreme Court review, or for en banc rehearing in the 9th U.S. Circuit Court of Appeals, must convince the court that the issue presented is one of widespread importance. A party may claim that the issue matters, but it is letters from amici that drive the point home. They demonstrate that other players care about the issue and will be affected by whatever rule the court adopts. Such letters need not be long (indeed, they should not be). They do not necessarily have to take a position on how the case should come out (although they can). The key is to describe the nature of the amicus's interest in the case and why the issue presented is significant in light of that interest - who it will affect, how it will affect them, and what will happen in the absence of the court's guidance.

Offer a new perspective.

An amicus brief that merely rehashes arguments in the parties' briefs - a "me too" brief - is unlikely to have much impact, if it gets read at all. As U.S. Supreme Court Rule 37.1 sums up, "[a]n 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 curiae brief that does not serve this purpose burdens the Court, and its filing is not favored." A successful amicus brief should focus on the unique perspective that the amicus brings to the case - for example, historical context, the real-world implications of a potential decision, or relevant academic literature.

Don't introduce new issues.

This rule may seem strange, given the mantra that amicus briefs should not rehash material covered by the parties. But amici must walk a fine line: A new perspective on the issues already presented in the case, or a new theory as to those issues, is welcome; new issues are not. In the words of the California Supreme Court, "[A]n amicus curiae accepts the case as he finds it and may not 'launch out upon a judicial expedition of its own unrelated to the actual appellate record.'" Prof'l Eng'rs in California Gov't v. Kempton, 40 Cal. 4th 1016, 1047 n.12 (2007).

Keep it short.

Judges generally encourage lawyers to streamline their briefs as much as possible. (The encouragement may soon become a mandate: There is a pending proposal to reduce Federal Rule of Appellate Procedure 32's permissible word limit.) That message is all the more true for amicus briefs, which add to the already-large stack of material confronting the court. To keep the court's attention, an amicus submission should be concise and laser-focused. That means highlighting what is unique about your client's argument, and avoiding repetition of the arguments and factual statements that appear in the parties' briefs.

Coordinate with other amici.

Another way to avoid overburdening the court is for potential amici to coordinate with each other. The Advisory Committee notes to 9th Circuit Rule 29-1 encourages amici with similar perspectives to file a joint brief. Likewise, if an organization wants to express its support for arguments set forth in the brief of a party or another amicus, the Advisory Committee advocates filing "a short letter so stating in lieu of a brief." In other words, be aware of whether someone else in the case is making an argument similar to yours, and if so, find a way to demonstrate your support without rehashing it.

Limit the parties' direct involvement in the brief.

Parties to an appeal are free to solicit amicus support or to coordinate amici. When the parties' involvement goes beyond general coordination or guidance, however, the courts want to know about it. Specifically, the California, 9th Circuit and U.S. Supreme Court rules require amici to identify any party or party's counsel who authored the brief "in whole or in part" or contributed money to help "fund the preparation or submission of the brief." Amici also must identify any other source of funding for the brief, apart from the amicus, its members, or its counsel. While these rules do not explicitly prohibit a party from funding or authoring an amicus brief, the fact of such involvement would likely color the court's view of the brief and would detract from the amicus's role as an independent voice.

Follow the applicable procedural rules.

As with any court filing, the starting point for a successful brief is to follow the applicable procedural rules - there are numerous, detailed requirements for amicus briefs, and failing to follow them will likely result in the court rejecting the brief without ever reading it. The rules are too detailed to describe here, but for a brief reference: In the California Court of Appeal or California Supreme Court, consult California Rules of Court 8.200(c) and 8.520(f), respectively; for the 9th Circuit, see Federal Rule of Appellate Procedure 29 and 9th Circuit Rules 29-1, 29-2, and 29-3; and for the U.S. Supreme Court, see Supreme Court Rule 37.

Alternatively, when in doubt, consult an appellate expert.