My colleagues at Mayer Brown LLP have come out with a superb treatise on Federal Appellate Practice. Naturally, I'm biased in this evaluation; but I think it's broadly agreed that Mayer's appellate practice is at least one of the very top in the nation, and they have a lot of experience to pass on. Judge Alex Kozinski agrees in his blurb for the book, calling it "a guide that every appellate lawyer should read — and that every client should expect to see on his lawyer's shelf."
I thought it would be worthwhile to blog some excerpts from the treatise this week, chiefly about amicus briefs and about oral arguments. These aren't necessarily the most important parts of federal appellate practice, but I have to admit that many important parts are not necessarily the most exciting to read about, unless you actually need them for a brief you're working on. So I tried to compromise by finding something generally interesting yet still relatively useful.
Today, I start with a question that has sometimes arisen in discussions here: Why should anyone file an amicus brief, and how should people decide whether to spend their time and money doing it? Here's the discussion, from chapter 12.2 of Federal Appellate Practice (some paragraph breaks added):
There are many different types of amicus briefs that persons or organizations want to submit to a court of appeals. An amicus sometimes wants to file a brief because it lacks confidence in the party's ability to address the core issues in the case accurately and competently. In that circumstance, an amicus brief is similar to a party's brief, addressing the same issues as the party and advancing essentially the same points, although it may not include some of the required components of a party's brief (for example, a statement of the case and, in many instances, a statement of the facts).
Another type of amicus brief is filed simply "to enable the officers of trade associations to show their members that they are on the ball." In that circumstance, as Justice Scalia has put it with characteristic bluntness, "it really does not matter what the amicus brief says."
Ideally, however, an amicus will attempt to say something that is of use to the court and different from what the party says. Amicus briefs of this type commonly fall into one of four categories.
First, there is an infinite variety of circumstances in which an amicus brief can provide extra-record factual information that may be of assistance to the court in understanding the background for the issues. An amicus brief can collect relevant facts or data that do not appear in the parties' briefs or in the record. This kind of brief enlarges the factual context in which the court will resolve the issues, beyond the record made before the trial court or administrative agency.
For example, an amicus brief might provide information about religious practices in a free exercise case, a university's admissions program in an equal protection case, a tribe's customs in a case involving Indian property, or endangered species in an environmental case. For an amicus brief of that type to be given weight by the court, "the nonrecord facts relied upon should have the ring of truth on their face"; an amicus risks losing credibility "if it goes too far in setting forth nonrecord material as indisputably true." In addition to providing factual information of which the amicus has special knowledge, amicus briefs may collect relevant facts or data that are publicly available — for example, the legal rules or procedures that govern in different jurisdictions.
Second, an amicus brief can provide the views of experts on an issue with which the court will have to grapple in deciding the question presented. Such a brief "can present information that may help clarify the issues in much the same way that expert testimony assists courts to make a more fully informed decision." For example, an amicus brief may provide the views of legal historians in a case involving a constitutional provision whose interpretation is likely to turn on historical practice or the views of economists in a case involving an antitrust issue whose resolution is likely to turn on economic theory.
In cases of that type, the parties themselves are unlikely to possess the requisite expertise; generalist judges are likely to benefit from the expertise of the amicus; and the judges are more likely to find the views advanced credible than if they had been set forth by the (nonexpert) party whom the amicus is supporting. Some have argued, however, that judges are too willing to find this type of submission credible, because most authors of amicus briefs are guided, not by "the scientific norms of neutrality and objectivity," but by "the ideology of advocacy."
Third, an amicus brief can explain the practical effects of a particular outcome on individuals or groups not before the court. For example, an amicus brief may explain how the decision in a school case will affect student achievement, how the decision in an environmental case will affect water distribution, how the decision in a tax case will affect a certain category of taxpayers, or how the decision in an international-trade case will affect a domestic industry.
Courts often are influenced by the practical consequences of adopting one or another of the legal rules under consideration. That is particularly true in "highly technical" cases in which decisions by generalist judges may have "a tremendous impact on people and institutions in the real world." It is also true in nontechnical cases in which there is no clear constitutional or statutory text that directly answers the question presented and judges thus have more leeway in taking practical considerations into account.
Fourth, an amicus brief can suggest an alternative legal ground for deciding the case. The alternative ground may be narrower. For example, while the party may want to achieve a big, symbolic victory by having a statute declared unconstitutional, the amicus may be able to persuade the court that the party should prevail because the statute, even if constitutional, does not reach the conduct at issue. The alternative ground may be broader. For example, while the party may be seeking to distinguish the decision on which the district court or agency relied, the amicus may believe that there is no plausible basis for distinguishing it and that the only hope for success is to argue that the decision should be overruled. Or the alternative ground may simply be different. For example, the amicus may have what it considers to be a better argument for obtaining the same relief.
In some cases an amicus will advance an alternative argument because it believes that the argument has a better chance of success; in some cases it will do so because its interests would be better served if the court adopted the amicus's own legal theory rather than the party's. If the amicus is supporting the appellant or petitioner and the alternative argument was not raised below, it may not be feasible for the amicus to raise the argument, because a court of appeals generally will not reverse a judgment on a ground not raised below. If the amicus is supporting the appellee or respondent, however, the party's failure to raise the argument below ordinarily will not be an obstacle, because a court of appeals can generally affirm a judgment on any ground that has a basis in the law and the record.
One other type of amicus brief bears mention: a brief filed by the government, federal or state, or a government agency as amicus curiae. This type of brief does not have to fit within one of the four categories described above. The government is not an ordinary litigant, and its goal, at least as an ideal, is not to win cases but to ensure that the law is correctly interpreted and that justice is done. For that reason alone, a brief that merely sets forth the government's views on a particular issue is likely to be deemed helpful by a court, especially when the brief is filed by the United States. That is why, as discussed in the following section, the Federal Rules of Appellate Procedure extend to the federal and state governments the right to submit amicus briefs. A government amicus brief, therefore, may provide powerful support for a party, even if the brief merely endorses the position that the party has staked out.
Of course, an amicus brief filed by the government may also fit within one of the categories described above. A government or government agency may have unique access to relevant facts or data; it may have expertise developed through administering a particular law; it may be able to explain the practical consequences of adopting a particular legal rule (for example, on the foreign-policy interests of the United States); or it may wish to offer an alternative basis for deciding the case before the court.