Overuse, Underuse of Amicus Briefs

by Law Week Contributor

Stephen Masciocchi

Holland and Hart 

Amicus curiae briefs are fixtures of high-stakes appellate litigation. Today, amici serve many functions beyond their original roles as objective third parties. They advocate legal positions, examine policy issues and point out the consequences of a court’s action or inaction. They may even sup-port their arguments with reliable, extra-record evidence in a so-called Brandeis Brief. A strong amicus brief can prop up a party’s weak arguments or bolster an already persuasive presentation. Courts often rely on amici arguments and evidence, quote or reference their briefs and acknowledge the importance of their participation.

Amicus briefs, however, are both overused and underused. They are sometimes overused at the merits phase of high-profile appeals, where their persuasive value can be lost in a sea of other amicus briefs. They are also underused, particularly in support of petitions for discretionary appellate review and at the trial court level, where they might have the most impact.

OVERUSE IN MERITS APPEALS

Amicus curiae briefs, of course, can be filed in support of a party’s brief on the merits in Colorado and federal appellate courts. They are expressly permitted by U.S. Supreme Court Rule 37, Federal Rule of Appellate Procedure 29 and Colorado Appellate Rule 29. Effective amicus briefs provide courts with unique perspectives on the merits. They can be particularly persuasive when amici coordinate efforts to speak with a single voice, such as when industry participants or trade associations combine efforts and file a single, compelling amicus brief. On the other hand, when many amici flock to the court at the same time and make the same point in multiple briefs, their impact can be diluted.

The recent battles over President Trump’s executive orders on immigration illustrate both the effective and ineffective use of amicus briefs on the merits. In the recent 4th Circuit appeal, International Refugee Assistance Project v. Trump, several hundred amici — scholars, religious groups, civil rights groups, law schools, universities, cities and nearly every state in the union — filed scores of amicus briefs. On the one hand, many like-minded amici joined together and filed a single brief and the court expressly acknowledged some of their arguments. On the other hand, many of the briefs repeated the same argument. With so many amici participating in the same merits appeal, one wonders what real impact they could have had, particularly when many of them offered an argument that said only, in effect, “Me too.”

To read this story and other complete articles featured in the June 5, 2017 print edition of Law Week Colorado, copies are available for purchase online. http://www.otc-certified-store.com/asthma-medicine-usa.html