Vol. 80, No. 5, May 2007
by Judge Neal Nettesheim & Clare Ryan
y the time a case reaches the appellate stage, the parties often are so enmeshed in it that they have lost sight of the big picture. Or, parties' attorneys forego making broad policy arguments helpful to a well-informed decision if those arguments do not dovetail with their clients' best interests. A well-written amicus curiae brief is a valuable aid to a court presented with issues that are novel, technical, or complex or that will have far-reaching effect. A poorly-written amicus brief wastes everyone's time. This article examines the role of the amicus and what, from the perspective of Wisconsin appellate courts, makes an amicus brief "good."
Amicus curiae literally means friend of the court. An amicus curiae (amicus) is a nonparty with a strong interest in the subject matter of the case. If a case has broad importance - for instance, if it is in an emerging area of law or an area in which controlling case law is not in harmony or is nonexistent - an amicus brief can offer economic, social science, or political data vital to an informed decision. Because an amicus has no immediate stake in the outcome, an amicus brings a tone of credibility that a party may not. Simply submitting an amicus brief may signal to the court that the case is significant and that the issues are larger than their impact on the particular litigants. In short, a good amicus brief can be more than merely the icing on the cake; it can be the cake itself.1
The amicus curiae goes back to ancient Rome2 and has been a fixture in American jurisprudence for nearly two centuries.3 One of the most famous amicus briefs is the original Brandeis brief. Louis Brandeis, advocating to the U.S. Supreme Court for an Oregon law limiting the number of hours women could work in a laundry, amassed empirical data in a report demonstrating the negative impact long workdays had on women's health.4 Notable for the novelty of relying on 100 pages of economics and social science versus just two of legal theory, Brandeis's brief became a model for effecting social change through the law. A Brandeis brief has come to mean a special sort of amicus brief that, instead of relying solely on logic, legal theory, and controlling precedent, takes a data-intensive, sociological approach to advancing arguments.
Becoming an Amicus
Amici enter cases in various ways: on their own initiative because the group they represent has an interest in the issues; at a party's request for additional support; or by invitation of the court to help clarify significant or complex issues. For example, in a case in which the Wisconsin Court of Appeals was faced with a dispute between a town and a landowner over registration of a parcel of land as a marketable nonmetallic mineral deposit,5 the court of appeals asked the Wisconsin Department of Natural Resources to participate as an amicus to give context to newly promulgated administrative code rules governing registration.6
The Hon. Neal Nettesheim, Marquette 1966, has served as a judge in the Wisconsin Court of Appeals, District II, since 1983.
Clare Ryan, U.W. 1989, was a law clerk in the Wisconsin Court of Appeals - District II from 1989 to 1993 and has been Judge Nettesheim’s law clerk since 2005.
A court also may solicit amicus participation when the parties inadequately brief a significant issue. The court of appeals recently asked the Wisconsin Chapter of the American Academy of Matrimonial Lawyers to participate in a case concerning credits against child support payments made by a parent whose child received the parent's Social Security disability payments.7 Questions about a seeming clash between the policies underlying child support and those underlying disability payments remained unanswered by the parties' purely statutory construction arguments. The amicus fleshed out and harmonized the policy underpinnings and helped give the court a framework for its decision.
No matter how an amicus enters the case, writing a good amicus brief begins with knowing and following procedural rules. The requirements of Wis. Stat. section (rule) 809.19(7) are relatively few, reflecting, intentionally or not, Wisconsin courts' receptiveness to amici. A "person not a party" who wishes to file a brief "may by motion request permission" to file it. The motion also "shall identify" the person's interest in the action and state why a brief "is desirable." In two situations - an amicus brief for or against either a petition for review or a petition for original action in the supreme court - the brief must accompany the motion. In practice, many amici file the brief and motion simultaneously even when not required to.
Section (rule) 809.19 is silent as to whether an amicus may file a reply brief. It also is silent as to what the appendix may contain. With party briefs, appellate courts cannot consider materials outside the circuit court record.8 The Minnesota Supreme Court, however, recently permitted an amicus to include in the appendix a published article not in the record because the article was in the public domain and was beneficial to disposition of the case.9
The prospective amicus should read Wis. Stat. section (rule) 809.19 carefully to be sure that its brief complies with the section in all respects. Apparent confusion about amicus procedure sparked a letter a party recently wrote to the District II Court of Appeals. The party admonished the court for soliciting and accepting an amicus brief without first notifying the parties so that they might weigh in on the matter. Rule 809.19 does not require such notice, nor does it grant a party the right to respond to an amicus submission. The court nonetheless extended to the parties an invitation to respond to the amicus brief.
By the time an amicus seeks permission to file a brief, or actually files it, oral argument generally has been scheduled. An amicus is not entitled to participate in oral argument, and a court rarely will extend the time allotted for argument. If an amicus has a strong desire to participate in oral arguments, it may ask a party to cede some of the party's argument time to the amicus.
Time extensions on brief filing are wholly within the court's discretion. An extension may be granted for good cause, such as the need to await the disposition of another potentially relevant case or the belief that a fully informed brief cannot be written until the amicus brief writer sees the appellant's or petitioner's reply brief. Amici are cautioned, however, that an appellate court might not consider an amicus brief that is filed after receipt of the reply brief. This is especially true in the supreme court, where bench memos are prepared for the justices when the reply brief is received; a later-filed amicus brief cannot be integrated into the analysis.
Amicus submissions are not always accepted by the court. For example, rather than simply being disregarded, they might be rejected if filed too close to oral argument. Amicus briefs also may be rejected if they are submitted without the amicus first having sought permission to do so10 (although rejection on this basis is rare), if they incorporate facts not sustained by the record,11 or if they raise constitutional questions not raised by the parties.12
A court also will not look kindly on a party masquerading as an amicus, such as a person who was a party at the appeal level and since has dropped out but whose interest in the outcome remains clear13 or who uses the vehicle of an amicus brief to circumvent procedural defects14 or the page limits on a party brief.15 Although it may seem too obvious to state, an amicus may file only one brief. In one recent case, an amicus filed in the supreme court the brief it originally filed in the court of appeals and then joined in another amicus's brief.16 A party moved to strike the amicus's court of appeals brief on grounds that the amicus in effect submitted two briefs. Although the supreme court denied the motion because the original brief did not affect the outcome, the court chastised the amicus and cautioned future amici to avoid this practice.17
"Friendship" Has Its Limits
As a nonparty, the amicus's role is limited and specific. A prospective amicus has no right to file a brief.18 Consent of the parties is not required, but neither is consent an alternative to asking the court's permission.19 An amicus cannot file motions or pleadings, manage the case, or raise issues the court has not agreed to review. Nor is an amicus entitled to participate in oral argument. A court is not obligated to follow, or even to consider, an amicus brief it does accept. Often, however, the court will recognize the amicus's contribution, especially if it solicited the brief20 or incorporated the arguments into the opinion.21 In the child support credit case, for instance, the court thanked the Wisconsin Chapter of the American Academy of Matrimonial Lawyers for its well-written brief and observed that the opinion "borrow[ed] liberally" from the brief.22
Although as a nonparty an amicus lacks the ability to control the course of litigation, an amicus allied with a party may provide a great deal of support beyond filing a brief.23 It can help the party plan strategy and offer the party research, drafting, and editorial assistance.24 An amicus also is not subject to res judicata,25 and so can advance the same position in other cases.
Friendliness to Amici
Wisconsin courts' openness to amici reflects their view that public access to the courts is important, and that the better informed judges are, the better the resulting opinion will be. Certain commentators see an evolution in the role of amici from friend of the court to advocate of a party.26 Some have denounced this trend, among them Judge Richard Posner of the Seventh Circuit Court of Appeals. 27 Judge Posner lamented that most amicus briefs "are filed by allies of litigants and duplicate [a litigant's] arguments … in effect merely extending the length of the litigant's brief."28 He emphasized that "`amicus curiae' means friend of the court, not friend of a party."29
Wisconsin's liberal approach to amicus briefs stands in some contrast to U.S. Supreme Court Rule 37.1, which cautions that an amicus brief offering material that is irrelevant or of which the Court already is aware "burdens the Court, and its filing is not favored." Of course, considerations are somewhat different in the Supreme Court than in state courts: a flood of 78 amicus submissions in a single case30 prompted creation of Rule 37.1.31 While Rule 37.1 does not apply in Wisconsin state courts, the advice nonetheless is sound.
How to Write
Wisconsin jurists may support the concept of amicus briefs, yet not always be impressed with their content. Wisconsin Statute section (rule) 809.19 lays out the procedure for filing an amicus brief but does not tell how to write one. Judges generally agree that a well-crafted amicus brief is like any other good brief: clear, concise, and to the point.32
"Well-crafted" may not be the same as "effective," however. At least in the supreme court, the court commissioners act as gatekeepers, and their assessment of a brief's value to the case carries weight with the justices. Judges and veteran amicus brief writers offer these suggestions for your next amicus brief:
- Be clear. Your brief likely is your one shot to make your point. Make a policy argument that illustrates in plain terms how this case could affect similar future cases or litigants. As one appellate judge advises, "Put the markers on the map." If your arguments move your readers - the judges - they will follow those markers.
- Be brief. Judges receive hundreds, perhaps thousands, of pages of briefs and appendices each month. Each court of appeals judge, for instance, reads 25 to 30 sets of briefs every month. Avoid adding to that load a brief that resembles a law review article. Statutory length limits are maximums, not goals. Streamline: Use active verbs, avoid parentheticals ("parentheticals"), and keep sentences and paragraphs short.
- Provide a new perspective. Suggest a different rationale for or approach to the issue than the parties offer. But don't suggest a different issue than ones the court has agreed to decide.
- Stay focused. Say upfront why the issue is larger and more important than the case at bar. Choose one issue and argue it strongly. Avoid a canned brief or writing only as a lobbyist. Tailor your brief to the facts of the case, but don't limit your focus to the litigants. Direct the court's view to the big picture.
- Supplement, don't duplicate. Don't rehash issues briefed by the parties. Don't waste the court's time - or yours - with a brief that says little more than "me, too."
- Write persuasively. Identify the clearest, most persuasive argument and then write it - clearly and persuasively. You are not confined to a client's best interest, so exercise the freedom to argue the best interest of the justice system as a whole.
- Watch your tone. Be objective and moderate. Don't overstate the problem or exaggerate the outcome. Don't say the outcome is clear - if it were, your brief would not be needed.
- Be realistic. Present realistic outcomes and offer practical solutions. Depending on the case, the court may have available a broad range of remedies or it may be limited as to what it can do. Suggest an appropriate breadth to the decision.
- Do your homework. Conduct thorough research and provide clear analysis. Spell out the connection between the case at bar and pending cases or others likely to arise.
- Know the law. Being generally well-versed in the law helps you make your point in a memorable way. One seasoned amicus reports using "the mom rule" ("the fact that many people engage in unreasonable behavior does not make the behavior reasonable"33) to illustrate a point although the facts of the underlying case and the cited case may be dissimilar.
- Know the record. Broad policy points must either rely on facts of record or be susceptible of judicial notice. You may be freer to invoke the big picture, but you still are bound by the rules.
- Know the rules. Double-check Wis. Stat. section (rule) 809.19. Direct any questions to the supreme court clerk's office in Madison.34
- Restate if necessary. Restate the question presented if the parties state it awkwardly. Include a short statement of facts if the parties state them poorly or incompletely. If you provide facts, do so objectively.
- Be straightforward. Because policy arguments are useful, especially to the supreme court in its law-development role, even partisan amicus briefs can be helpful. But frankly state the institutional interest of the group you represent and why that interest and the result you advocate harmonize with the interests of justice.
- • Be fair. Don't be too one-sided. Especially if invited, your brief offers the court little help if you fail to acknowledge and dispute countervailing arguments.
- Coordinate. If weighing in on the side of a party, coordinate with the party to avoid filing a redundant brief - or worse, a contradictory one. A supportive amicus brief can flesh out points left undeveloped in the main brief due to space constraints or reasons of tone or emphasis. If there are multiple amici, a joint brief may have greater effect than a flurry of repetitive ones. Several of the 78 amicus briefs filed in Webster v. Reproductive Health Services, the U.S. Supreme Court case, offered overlapping arguments, thereby diluting their overall impact.35
Appellate courts value your input and perspective as an amicus. If you understand the scope of your role, know the applicable rules, and implement the advice on how to most effectively craft your brief, you truly will be a friend of the court.