How To File an Amicus Brief: A Step-By-Step Legal Guide

An amicus curiae brief, Latin for “friend of the court,” is a legal document filed by a person or organization that is not a party to a lawsuit but who contributes their expertise or perspective to help the court make an informed ruling in the case.

Amicus briefs provide additional perspective, expert knowledge, and a clearer sense of how a decision may affect individuals or groups beyond the parties in the case. They frequently align with one of the parties in an appeal challenging a lower court’s decision to a higher court.

Amicus briefs are a way for individuals and organizations with an interest in unresolved legal issues to present their views to the U.S. Supreme Court, lower federal courts of appeals, or state appellate courts.

If you’re interested in filing an amicus curiae brief or joining in to offer your expertise for a cause you care about, it is important to understand how the amicus brief process works. For legal guidance on filing a brief, speak with an experienced appellate attorney.

Who Submits Amicus Briefs?

A variety of people and organizations file thousands of amicus briefs in cases each year, including academics, nonprofits, trade associations, private attorneys, scientists, and government officials. There are even nonprofits that assist with amicus curiae cases.

Both state and federal courts, including the U.S. Supreme Court, have their own rules for amicus practice. They could be especially helpful where the parties lack quality legal representation. This would be the case where a pro se brief is poorly written, yet presents important legal arguments.

Why Do Amicus Briefs Matter?

Amicus briefs give non-parties a voice on legal issues important to them. The best amicus briefs help judges make more informed decisions, making them true friends of the court, even though they are not parties to the case.

When amicus briefs comply with the court’s rules and offer a different or additional perspective to that of the parties, they can make a difference in the judicial system as cases are appealed. Explaining why the issues are significant may be especially helpful.

Amicus briefs provide facts, theories, perspectives, insights, or analytics that the parties may not present. Briefs may concern a wide range of disciplines, including history, sociology, linguistics, economics, or the hard sciences, as they relate to the case’s core issues. They can provide valuable resources for the judges as they make their decisions. During a recent term, the U.S. Supreme Court cited amicus briefs in 65% of its opinions.

With the flurry of briefs that can be involved in a case, your brief must follow the rules, say something unique from other briefs, and use the appropriate writing style.

Your Perspective Can Help in a Case

If you have particular expertise that may help a case, such as scientific or academic research, you may be able to submit a brief or support one that is being filed. In either case, you must provide the most effective brief possible so that your position is clearly articulated and has the greatest potential to influence the court’s decision.

U.S. Supreme Court Rule 37.1 states that an amicus 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,” but an amicus brief that “does not serve this purpose burdens the Court, and its filing is not favored.”

Different appellate courts have their own rules for amicus briefs. It is critical to understand the court’s rules and steps for filing an amicus brief.

Step 1: Make Sure the Court Allows Amicus Briefs

In general, anyone can file an amicus brief. At the U.S. Supreme Court, no “motion for leave” or formal permission is required to file an amicus brief if written consent of all the parties has been provided. Many parties provide a blanket consent to all amicus briefs filed. This consent is usually noted on the court’s docket.

In federal court, the amicus brief must include certain disclosures, such as the identity of the amicus, its interest in the case, and the authority to file. State courts have similar rules requiring disclosures of the person or entity who files the brief.

Step 2: Identify Your Main Message

An amicus brief can help counsel say something different than the party briefs.

You want your main message to come through clearly. If you find that another organization or group has a similar position to yours, it may be best to attempt to join the other filing instead of submitting separate briefs. Law clerks and judges do not need more pages to read, and duplicating arguments undermines the role of an amicus curiae as a friend of the court.

With a clear message, provide any expertise, such as industry knowledge or scientific expertise. Explain the consequences of the decision and how it would impact others beyond the parties to the lawsuit.

Step 3: Draft the Brief in Clear, Plain Language

When it comes to the gold standard for drafting amicus briefs, U.S. Supreme Court briefs drafted by the Solicitor General are widely considered the best examples. Law clerks and judges are unlikely to review poorly written amicus briefs.

Writing an amicus brief is different than drafting a trial court brief in both content and style. Though the exact contents of the brief may vary by the particular court where the brief is filed, keep these considerations in mind:

Provide a Table of Contents

This section should provide a quick visual summary of the brief. Avoid using all caps in headings, as it makes them difficult to read. If they cannot read it easily, they will be unlikely to give your message due consideration. Judges and law clerks rely on the headings and summary to decide whether to read further.

Engage the Reader in the “Interest of the Amicus Curiae” Section

Do not waste space providing a boilerplate description of the organization submitting the brief. Instead, elaborate on why the amicus curiae has an interest in the case and the questions presented in a way that would draw the court in to want to read more. Explain why the issues are important for the court to address.

Make Thoughtful New Arguments

Do not interject new issues into the case. It’s helpful to the court to make new arguments or simplify the issue presented. Doing so can increase the chances that it will be seriously considered, rather than being skimmed and discarded.

Give a Strategic Summary of Your Argument

Be sure that your summary is just that: A summary. Write this as the final section of your brief. If it is too detailed, it will lose its potency.

Provide an Effective Chronology of Facts

Refer to the facts or chronology only to the extent needed to support your arguments in the brief. Amicus briefs should approach issues on a higher level than the parties, who must provide a comprehensive chronology.

Use a Concise, Elevated, Respectful Style

Clear, concise, persuasive arguments go a long way. Attack the opposing party’s position, but do not attack the opposing party or the lower court judges.

Step 4: Follow the Court’s Rules and Deadlines

It is critical to follow the court’s rules relating to preparing and submitting amicus briefs. For example, the requirements for U.S. Supreme Court amicus briefs include:

• Interests of the Amicus
• Summary of the Argument
• Argument
• Conclusion

The rules also outline word limits, font size, the number of briefs to file, the type of paper, block quote formatting, and page margins. You should avoid substantive arguments in footnotes. Courts have specific font requirements, and footnotes in a small font are difficult to read.

With the U.S. Supreme Court, briefs must be filed within 30 days after the case is placed on the Court’s docket or whenever the Court calls for a response, whichever is later. Once the Court agrees to hear the case, amicus briefs must be presented within seven days of the parties’ briefs.

Step 5: Prepare Any Required Supporting Documents

The U.S. Supreme Court has special formatting rules not only for its briefs but also for supporting documents.

You will want to work with an experienced typesetter to ensure that the supporting documents comply with the court’s rules and present the best written product. This increases the likelihood that the materials will be reviewed.

Step 6: File the Brief with the Court

State and federal rules discuss how to file amicus briefs through the court’s electronic filing system or with hard copies. To ensure your brief is filed on time, double-check the submission deadlines.

For hard copy filings, prepare the required number of copies and verify the correct delivery address and method, whether by mail or in-person delivery.

Get Legal Help with Your Amicus Brief

Some individuals or organizations may be able to successfully file an amicus brief on their own. However, given the technical requirements for filing briefs and the high stakes of the filing, you should not risk mistakes.

An experienced appellate attorney can help ensure the brief meets all formal requirements and is well written so the court considers your position. Consult with an experienced appellate attorney who can help you decide whether to file an amicus brief and help you through the process.