An amicus curiae, or “friend of the court” brief, is submitted to the court when an individual or group has an interest in a particular case, even though they are not a party. Amicus briefs may be filed by consumer protection groups, non-profits, private corporations, trade associations, government agencies, among others, and are frequently seen in high-profile or high-stakes cases. In some cases, multiple groups will sign a single amicus brief. The U.S. Supreme Court receives hundreds of amicus briefs each year. One recent Supreme Court case, involving the marriage equality act, set records for the most amicus briefs (147) and the most signatories on a single amicus brief (over 200,000). Supreme Court Justice Breyer has stated that amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.” Justice Alito has concurred, observing that, “an amicus may provide important assistance to the court by collecting background or factual references that merit judicial notice.” From influencing the outcome of a case to educating the court on an issue of national or wide-ranging importance, there are many reasons to consider submitting an amicus brief. Here are the basics.
WHY SHOULD I FILE AN AMICUS BRIEF?
The most common reason to submit an amicus brief in a case is because the court’s disposition of the case will affect you or the members of your group. In filing an amicus brief you are attempting to influence the outcome of the litigation by offering what should be a unique perspective on the issue at hand. Amicus briefs also provide an opportunity for experts, such as academics, non-profits, or think tanks, to educate the court on a particular issue.
Amicus briefs have become a regular part of the litigation process and can be viewed as an exercise of the constitutional right to freedom of speech and petition. Indeed, many social movements take advantage of the opportunity to submit amicus briefs to send a message to the courts and to the public about their goals and views, without having to initiate lawsuits themselves.
CAN I FILE AN AMICUS BRIEF IN WASHINGTON STATE COURT?
The Washington State Rules of Appellate Procedure allow the filing of amicus briefs if all parties to the case consent to the filing or if the filing of the brief would “assist” the appellate court. An amicus brief should not be a “me too” brief that simply duplicates the brief of one of the parties. As the oft-quoted Justice Posner has stated, the criterion for deciding whether to permit the filing of an amicus brief should be whether it will “assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs.” This criterion is more likely to be satisfied in cases in which:
a party is inadequately represented;
the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or
the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide
If you have an interest in the outcome of a pending appeal and believe you have expertise or information that the parties do not possess and that could assist the court in making its determination, you should consider submitting an amicus brief. The parties to the case can consent to the filing of the amicus brief; otherwise, you must seek the court’s permission.
HOW DO I FILE AN AMICUS BRIEF?
To file an amicus brief, you must submit a request by motion. The motion must include the following:
statement of your interest in the case and the person or group you represent;
statement of your familiarity with the issues involved in the review and with the scope of the argument to be presented;
statement of the specific issues to which your brief will be addressed; and
statement of your reason for believing that additional argument is necessary on these specific issues.
A copy of your proposed amicus brief will be included with the motion. The parties to the case may object to a motion to file an amicus curiae brief. The court will then rule on the motion and decide whether or not to allow your amicus brief to be filed.
WHEN DO I FILE AN AMICUS BRIEF?
Washington Rules of Appellate Procedure require amicus briefs to be submitted to the Supreme Court (the state’s highest court) no later than 45 days before oral argument or consideration of the merits, if no oral argument is set. At the Court of Appeals level, amicus briefs are due no later than 45 days after the filing of the brief in opposition to the appeal (known as the “respondent’s brief”).
HOW I CAN HELP YOU
If you are interested in submitting an amicus brief in an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an amicus brief.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.