Commentary: With a Little Help from My Friends: Amicus Briefing in Appeals

Mounting or defending an appeal can seem a daunting task at the inception, but it need not be a lonely one: a friend of the court brief (or multiple such briefs) can be a persuasive tool in advocacy. Amici come in various forms, including parties in other cases, public interest or advocacy groups, as well as those with specialized expertise. Amicus briefs can raise broader legal implications of a particular holding, reveal conflicts in the law or emphasize policy issues of general importance. While parties seek to achieve their individual goals in the dispute before the court, amici represent group interests in a broader way.

Missouri Supreme Court Rule 84.05(f) expressly contemplates the filing of amicus briefs in the Supreme Court by consent of the parties or upon motion for leave; the State can file as of right. The Local Rules of each district of the Missouri Court of Appeals have similar provisions. Compare E.D. L.R. 375 with W.D. L.R. 26 and S.D. L.R. 15. In our federal circuit, F.R.A.P. 29 and 8th Cir. L.R. 29A expressly permit amicus briefs.

In cases involving amicus practice, lawyers are cautioned to consult these rules, which have specific requirements for amicus briefs (as well as motions for leave to submit them). In federal appeals, for example, unless the amicus curiae is a governmental entity, F.R.A.P. 29(a) requires every amicus brief to include a statement that indicates whether a party’s counsel authored the brief in whole or in part, and whether a party, a party’s counsel or another person contributed money that was intended to fund preparing or submitting the brief.

Strategically assembling friends to your position can draw the appellate court’s attention to arguments and issues that a party may not raise. Effective amici can explore the policy or practical consequences of a decision, or dive into the legal history of a particular doctrine. Although restating party arguments doesn’t help much, a respondent or appellee should respond to a powerful merits argument raised in an amicus brief. Consider too that judges do not rule in a vacuum; rather, they are products of their judicial philosophy, politics and life experience.

In connection with every amicus brief, it is wise to consider the sound advice embodied in United States Supreme Court Rule 37.1: “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

Our recent experience as counsel for an appellee in an Eighth Circuit appeal on the issue of absolute immunity was to assemble a pan-ideological group of amici. The libertarian Institute for Justice marshalled legal-historical evidence to explain the doctrine’s roots and growth from medieval English common law to the founding to Reconstruction. The National Association of Counsel for Children gathered social science evidentiary arguments. And the National Police Accountability Project pointed out how immunity can shield state and local government officials from accountability under federal law.

We ended up winning an extensive, unanimous opinion, which has already been approvingly cited by at least one other federal circuit. The three amici did not just contribute broader arguments that we as counsel for the appellee did not, and perhaps (strategically or otherwise) should not have. Rather, the amici signaled to the panel that this was a case with implications far beyond the table stakes for the parties. The final opinion greatly benefited not just the parties, but also the public, because of the amici’s additional arguments.

Who does the work of the amicus? Some public interest groups have the in-house capacity to brief the issues. But there are other potential sources. BigLaw firms are one: such attorneys often welcome the opportunity to deploy their skills to advocate a position for the wider public good (assuming such amici do not run afoul of stringent firm conflicts checks). Law school clinics are another. Local and state-connected causes can be of greater enthusiasm to law students. Less experienced lawyers are another, in that amicus brief writing can be a welcome opportunity to develop appellate research and writing skills. Don’t forget that groups that don’t litigate may welcome your offer of amicus help: Missouri Appleseed, for example, does effective advocacy for vulnerable women, children and families but does not have a litigation practice at this time.

Like with all appeals, the Hippocratic Oath is instructive: first, do no harm. But with a little help from your friends, you might just get by.