Although litigation involves a finite number of parties, in many instances the results of appellate cases can profoundly affect large groups of people, whole industries, or individual business interests. Decisions by higher courts establish legal precedents, strike down or uphold legislation and regulations, and define the rights and obligations of countless entities. When a decision can have such a powerful impact on civil liberties or business operations, those not directly involved in the litigation would like the court to hear how the decision will impact their lives.

Often, an amicus curiae brief filed in a pending matter can be the most effective way to ensure appellate judges consider other points of view when making their decisions. Amicus briefs also provide an opportunity to place the legal dispute in “real life” context and offer new perspectives on the significance of the legal issue.

What Is an Amicus Brief?

Non-parties – amicus curiae – may submit briefs in appellate matters supporting a particular party’s position. These “friends of the court” assist an appellate court by providing additional, relevant information or arguments they want the court to consider before making a ruling.

The motivations behind filing an amicus brief can be altruistic or academic. Still, they are more often the product of businesses, non-profits, trade associations, and interest groups that want to see a specific outcome in the case. Amicus briefs are most commonly filed in cases that raise novel issues with broad public policy implications, cases involving complex regulatory or statutory schemes, and highly technical or complex areas of law.

And non-parties are filing more amicus briefs than ever before. An analysis of the U.S. Supreme Court’s docket for the ten terms between 2010 and 2019 found that “amici cumulatively filed more than 8,000 briefs, participated in 96 percent of all argued cases, and were cited by the justices in more than half of their rulings.” That same analysis noted, “the justices were drawn to briefs that did not just reiterate the parties’ arguments but instead provided real-world information that contextualized the difficult questions before the court.”

Effective amicus briefs are meaningful to the court because they offer new arguments or contextual information, and do not merely echo a party’s views. Significantly, amicus briefs are not limited to the record below and therefore can provide factual or background information that may provide significant context to the underlying issues. Additionally, amicus briefs can introduce new or alternative arguments that were not asserted in the lower court, which may be helpful to the court in a case grappling with a complex statutory or regulatory scheme.

Why You Might Consider Filing an Amicus Brief

Most individuals, groups, and businesses try to avoid litigation, so it may seem counterintuitive for them to actively seek out cases in which to insert themselves. But filing an amicus brief is often a worthy investment when the case’s outcome could have a profound economic or personal impact.

Appellate and Supreme Court decisions, both at the state and federal levels, establish precedents that live on long after a case is decided. If a party is involved in a similar matter or regularly finds itself in litigation concerning the same subject, filing an amicus brief can help sway a court to establish a favorable precedent that will position the party for success in future cases.

Similarly, a decision may have an immediate impact on a business’s concerns or the members of a particular group. The court rules one way, and opportunities and rights expand; it rules the other way, and doors close. An amicus brief is the opportunity to remind or inform the court of the broad implications of its decision. A persuasive amicus brief can educate, elucidate, and expand the judges’ perspectives as they deliberate.

At Sugarman Rogers, our appellate lawyers are frequently asked to prepare amicus briefs for clients who see their interests implicated in pending appellate cases. Recent amicus briefs, or amicus intervenors, include:

• Wellesley Conservation Council v. Pereira, 98 Mass. App. Ct. 194 (2020) (submitted an amicus brief on behalf of a land trust and a coalition of land trusts arguing that the holder of a conservation restriction may recover money damages if the restriction is violated).
• Students for Fair Admissions v. President & Fellows of Harvard, 397 F.Supp.3d 126 (D.Mass.) (2019); 980 F.3d 157 (1st Cir. 2020) (local counsel in cooperation with NAACP LDF representing amici intervenor Harvard student groups and alumni at trial in District Court and submitted amicus briefs in both the District Court and First Circuit Court of Appeals in support of Harvard’s race-conscious admissions).
• George Caplan v. Town of Acton, 479 Mass. 69 (2018) (submitted amicus brief on behalf of the American Civil Liberties Union of Massachusetts focusing on the purpose and history behind the Massachusetts Anti-Aid Amendment in support of citizens challenging the constitutionality of grants of public funds to renovate an active church that had been identified as a historic resource under the Community Preservation Act).

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Alessandra W. Wingerter

Associate

617-227-3030 Email Alessandra