Amicus Work in a Nutshell

So, this is my ten-step process in a nutshell, which can be modified, of course:

1. Draft at least an outline of the brief and an e-mail explaining to potential amici the importance of the filing. If possible, identify and call amici first; then follow up with the e-mail. (Ethics rules don’t allow solicitation of clients, but those rules contemplate litigation for a fee, so there is no prohibition against asking others to join you in a pro bono amicus brief.)

2. Do you want co-counsel? I would choose someone for a combination of most of these reasons: (a) it’s someone you enjoy working with; (b) it’s someone who can walk the final brief down to the courthouse in a faraway city if necessary; (c) it’s someone who can help bring in amici; (d) it’s someone with a depth of substantive knowledge and writing talent to keep you honest and completely accurate in drafting the brief.

3. Circulate the draft brief to amici who have indicated a likelihood of joining. You need people to support what you have to say (against whom it must be said) without compromising the objectivity of the points you know as an academic should be made. This does not mean you must abandon passion.

4. Check all applicable rules and comply with them, including the usually short deadline triggered by the filing of whatever motion or brief in the litigation you intend to support. Hiccups: If you changed your name, then you need to make sure that is up to date in the court. This is another reason why co-counsel can be helpful – if he or she is current, and you are not, you can file in his or her name.

5. If the rules require you to ask for each side to consent, you will have to draft a separate motion if both sides do not consent. This is not necessarily a bad thing, but it requires additional effort.

6. Where to find the applicable rules? If the case is in the Courts of Appeals, Federal Rules of Appellate Procedure 29 and 32 apply. Supreme Court Rule 37 controls there. U.S. District Courts don’t have specific rules, but my research shows that you need to file a Notice of Appearance, Motion (with the Brief attached but individual judge’s rules may differ), then the Brief if the Motion is granted. The motion can ask the court to deem the brief attached to avoid another filing. Comply with all local (and judge-specific) rules and adhere to the spirit of Fed.R.App.P. 29 and 32.

7. Deal with all of the technical aspects of the brief well in advance of the filing date: Court admission for all attorneys on the brief or motion (full admission or pro hac vice; some courts may have “library fees” and what-not that need to be rendered current before you can file), register for Electronic Court Filing (ECF) in that court (if you’ve been out of practice for a while), comply with all of the ECF requirements (searchable PDF with exact pagination in Word and the PDF), file the Notice of Appearance, possibly you’ll need a Civil Cover sheet. The clerk needs to enter your appearance with all names of represented amici BEFORE you can actually file your brief or motion. This can take a day or two even without any hiccups.

8. After #7 is completed, you can file the Motion, if necessary, and the brief. You’ll need to comply with all filing requirements, including providing originals and hard copies to the court and counsel as necessary (despite ECF). Check Local Rules carefully. There is some expense here. A philanthropist who believes in the cause may be willing to cover these.

9. At my institution, students have a 50-hour pro bono requirement to graduate. Students know I do this work and often ask me whether I have any available. I keep a running list of interested students to contact later. I also get good responses to e-mails seeking help. I can’t in good conscience have them work during the last 2-3 weeks of the semester or during finals. I did have one wonderful almuna help me on one brief during this gap. So, timing is important. Some students, particularly those who have served as my Research Assistant, are capable to take the first stab at drafting discrete parts of the brief under a deadline. Others can provide citations and parentheticals where you identify a need, cite check, take care of the technical aspects of the brief (#3-#7) and the filing. If you’re going to involve students, you basically need to be available by phone at all times if their responsibilities will push up against the deadline. Involving students can slow up the process (and occasionally result in errors that need correcting).

10. Hope the court appreciates the friendly advice! Blog on Prawfs about it.

Posted by Jen Kreder on June 7, 2011 at 10:06 AM

Comments

Thanks for the post. I could have used it a week ago when I filed my first amicus brief. If you’re going to post more on this topic, please talk about deadlines. How strict are courts? They’ll bounce things back sometimes; other times do they say, “Too bad, your pdf numbers don’t match your page numbers so we’re throwing this in the garbage”?

And please do post your pdf how-to notes when they are ready. I’ve done my bit with my one-time experience; I posted how to do after-hours filing in Indiana, which might amuse you: http://rasmusen.org/special/rotunda/ If you want, I’ll post your notes on my website (just if you need a server to put them on).

Posted by: Eric Rasmusen | Jun 18, 2011 12:32:01 AM

First, Bruce, yes, the Second Circuit has been hyper-technical. Rumor has it over 60% of the attorneys practicing before the Second Circuit were not in good standing, because of a $15 library fee that was instituted. The Second Circuit was compelling lead counsel to file through his own ECF account, which one can only get if one is current, to collect. Name changes, address changes and the requirement to mail a check when not able to get to the courthouse gum this up. Also, I think the Second Circuit is really forcing ECF compliance early in a painful way to spare annoyances down the road. I had a student train to do it right. I’ve asked him to put together a cheat cheat on proper PDF conversion and ECF filing that is easier than the Second Circuit’s on-line tutorial. When I get it, I’ll post it if there’s interest. You need Adobe Acrobat, not just Reader, first off.

Second, Mike, there are all different reasons for choosing different amici. Of course, just submitting your own brief would be the easiest. I’m not so sure the judges would care too much what I have to say on my own, so I prefer a little back-up. On the other hand, I don’t think getting 100 amici usually is worthwhile. If something were obvious, there probably wouldn’t be much of a need for the brief. Also, I have a preference for having others besides law professors on board. I doubt judges would view us as more expert in law than they are, regardless of our specialties. In fact, in my research on amicus briefs I discovered that U.S. law profs’ attempts to file expert reports on various aspects of the law have been rejected on the same grounds. And, as you know, in my field history is as important as law.

Posted by: Jen Kreder | Jun 9, 2011 1:50:18 AM

Jen,

Good post. I have a question, for you or for anyone else who cares to chime in. What are the comparative advantages and disadvantages among the following three options: representing a person or pre-existing entity as an amicus; filing on behalf of yourself and other law professors; and filing on behalf of yourself alone? I haven’t seen too many examples of the third option but I believe Richard Friedman at Michigan has done it in the Supreme Court.

Posted by: Michael J.Z. Mannheimer | Jun 8, 2011 9:12:42 PM

Re #7: ECF rules raise things to a whole new level. In a recent case in the Second Circuit I saw a lot of briefs get bounced because of either non-searchable text or PDF page numbers not corresponding to the brief page numbers (I’m not even sure how to do that myself). Some were bounced multiple times.

Posted by: Bruce Boyden | Jun 8, 2011 4:15:26 PM