I Get By With A Little Help From My Friends

By its very nature, litigation can be a lonely and adversarial undertaking. You’re either fighting with the other side, or fighting with the court. And that’s true not only in the trial courts, but on appeal. So when you are in a fight, it is always nice to get some help from your friends. In legal terms those friends are known as amici curiae. But like all friends, amici have different personalities, and some are closer than others. And often, your friends have their own agendas.

“Amicus curiae” translates literally to “friend of the court.” At its highest level, amicus practice is truly altruistic — an independent party weighs in to help the court reach the best outcome. More cynically, however, friends of the court tend to be much friendlier to one side or the other, and have often been recruited to advocate for that side, and not necessarily the “right” answer.

Judge Richard Posner of the 7th Circuit is a well-known critic of amicus briefs. He has repeatedly voiced his skepticism of amici curiae and advocated for a limited role for their participation in appeals. Indeed, much has been written on this topic, so it’s unnecessary to repeat that discussion here. What is important for lawyers to remember is that, despite these criticisms, there is a place for amicus briefs, and that they can, and sometimes do, serve a helpful purpose.

An amicus brief is supposed to inform the court of facts or matters of law that may have escaped its consideration, not to repeat or emphasize arguments already put forth by a party. See State v. Finley, 242 Minn. 288, 64 N.W.2d 769 (1954). As the United States Supreme Court’s own rules state: “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 curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

Much of the criticism leveled by Judge Posner and others around amicus briefs is that they are largely duplicative of the litigants’ briefs, adding little to the presentation of issues before the court. The function of an amicus is best served by a nonadversarial explanation of the reasons why a particular rule, doctrine or statutory construction advocated should be adopted, retained or abandoned. An amicus brief should not argue the facts or urge that a particular party should prevail. SCSC Corp. v. Allied Mut. Ins. Co., 515 N.W.2d 588, 598 n.1 (Minn. Ct. App. 1994).

Often when a case goes up on appeal, it has the potential to impact many parties beyond the immediate litigants to the action. Amicus briefs are particularly appropriate in cases where constitutional questions are presented, Erie Min. Co. v. Commissioner of Revenue, 343 N.W.2d 261 (Minn. 1984) (constitutionality of taconite tax), where new statutes are to be construed, Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353 (1969) (effective date of comparative negligence statute), or where troublesome legal principles are being considered, Schmidt v. Clothier, 338 N.W.2d 256 (Minn. 1983) (construction of underinsured motorist statute).

In Minnesota state courts, amicus practice is governed by Rule 129 of Minnesota’s Rules of Appellate Procedure, while in federal court it is governed by Rule 29 of the Federal Rules of Appellate Procedure (and Rule 37 of the Rules of the Supreme Court of the United States). There are strict time limits for asking for leave to file an amicus brief, and for filing the brief itself. Friends don’t get to slow down the appellate train.

Under Rule 129.04, an amicus is generally not permitted to participate in oral argument except with leave of the court. Usually that leave is granted at the expense of the argument time of one of the parties. In addition, an amicus curiae is not permitted, in the absence of exceptional circumstances, to expand the scope of an appeal to include issues that were not presented by the parties before the district court. See McCleskey v. Zant, 499 U.S. 467, 523 n.10 (1991).

Sometimes the court and the litigants find themselves with many friends. For instance, in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), the Supreme Court’s landmark marriage equality ruling, a record 148 amici filed briefs in that appeal. That broke the previous record of 136 amici briefs filed in the Affordable Care Act appeal in 2012.

It is also worth noting the value of these friends at the certiorari stage, or, in Minnesota, when a party is seeking further review by the Supreme Court under Rule 117. Since one of the criteria for review under that rule is that a case presents an issue of statewide importance, requests by one or more amici to participate in the case often show concretely the significance of a case.

And those requests help. In the 2005-2006 term before the U.S. Supreme Court, the presence of at least one amicus brief support a cert petition increased the odds of cert being granted by 20 percent. Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 Geo. L.J. 1487, 1528 (2008). The odds of review jumped to 56 percent if four of more amicus briefs supported the petition. While no statistics are available for the Minnesota Supreme Court, it is clear that the interest of amici can be a factor in the court’s decision to grant review.

Indeed, many organizations in Minnesota regularly file amicus briefs before Minnesota’s appellate courts and the 8th Circuit. In fact, many of these organizations invite private litigants to notify them about pending cases in which they may have an interest in the outcome and to even request an amicus brief, including:

• Minnesota State Bar Association
• Minnesota Defense Lawyers Association
• Minnesota Association for Justice
• Minnesota Chamber of Commerce
• State of Minnesota
• Association of MN Counties
• Minnesota Department of Human Rights
• Children’s Law Center of Minnesota
• Minnesota Civil Liberties Union
• Minnesota’s National Employment Lawyers Association
• Minnesota Coalition Against Sexual Assault

In some cases, the appellate court has even accepted amicus briefs from lawyers and law firms without clients, if their practices will be affected by the decision in a particular case. See Robbinsdale Education Association v. Robbinsdale Federation of Teachers Local 872, 239 N.W.2d 437 (Minn. 1976). A quick Google Scholar search of Minnesota cases for “amicus” shows the broad range of friends who have weighed in on a wide variety of issues.

In the U.S. Supreme Court, the Chamber of Commerce is by far the most active friend of the court, filing a total of 54 amicus briefs in support of cert petitions between May 2009 and August 2012. It also turned out to be the most effective friend, with a certiorari success rate of 32 percent, much higher than the Supreme Court’s overall cert rate and higher than any other organization that filed more than 10 briefs in support of cert petitions.

While it can be helpful to litigant to have friends, you can’t get too friendly. Amicus briefs have specific disclosure requirements. Rule 129.03 of the Minnesota Rules of Appellate Procedure says amicus briefs must “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… .”

Federal courts have similar requirements. The Advisory Committee comment says that the rule is “intended to encourage participation of independent amici, and to prevent the courts from being misled about the independence of amici or being exposed to a mirage of amicus support that really emanates from the petitioner’s word processor.”

Despite these reservations, it’s important to remember the value of amicus briefs. When well written, amicus briefs can serve the court by addressing matters not highlighted by the litigants themselves and by demonstrating the applicability of the legal issues beyond the immediate parties to the appeal. Litigants should always keep in mind that their appeals may stand a better chance with a little help from their friends.

Reprinted with permission of Minnesota Lawyer ©2016