I am back from more peripatetic wanderings and at long last it is time for my download from the latest AAAL conference.
The first session was on amici briefs, discussed by a panel incuding an 11th Circuit judge, AAAL member Prof. Alan Morrison of GWU who files many amici briefs, and a Gibson & Dunn attorney who files them also.
There really are two worlds for amici briefs – the US Sct and everyone else. In the US Sct world, 95% of all cases have briefs, with an annual total of @800 submitted (that's a lot of trees). At the CTA level, this plummets as of 2007 to about 5% of CTA cases, and varies among state courts, from 5% to over 50% of the case load. As one example, the NY Court of Appeals welcomes them and receives them in 30% of its case load. The Federal Circuit invites them, sometimes asking specific organizations by name. The Connecticut court will invite bar organizations to file them in tort cases, from both the plaintiff and defense sides.
In that 2007 survey, they asked judges when the briefs were helpful – the answers were when the parties hadn't made the argument (or, more precisely, hadn't adequately fleshed out the argument, because in many places the amici can't make "new" arguments); when the perception is that a party is not adequately represented; and then, in 30% of the cases, to obtain new factual information that can express, for example, potential implications of the decision. 96.6% like briefs from the government, 71.7% from special interest groups; and at the botton, 56.6% from professors.
On this point of new factual information, there is the somewhat, at least at first blush, the counterintuitive situation of having the parties' having to rely on a developed fact record, but amici blithely pronoucing any fact they want as gospel. The general consensus was that allowing amici to be free and easy with their assertions was ok generally, as long as the reviewing court accepted those assertions for what they were – just assertions and not record fact. (One person noted that when an amicus basically attempted to file an expert report to shore up one side's position, they filed a Daubert motion). There is no point in saying amici can't do this, because first, the subject usually involves public policy, which sometimes doesn't come up in developing the trial record, and second, there isn't much difference between the assertions in an amici brief about potential ramifications of a decision and a party answering the court's question in oral argument asking the same thing.
The 11th Circuit judge indicated that his court hardly ever received them, and he would like more of them. Unlike the Supreme Court, he said, the quality of representation at the CTA level varies widely. He suspected that the lack of amici filings came from a lack of knowledge that an issue was pending before the court. I've blogged on this before – the inability, particularly in a place like Maine, to know when an issue is pending before the Law Court until it's too late. In the absence of an appellate court providing a published heads up in time to do something, there's no way to find out except luck. Hence, we should all encourage the Maine SJC to identify matters before it in which amici briefs might be useful early on in the process, like the Mass SJC does. The Maine SJC has started to ask for amici sometimes; this development is a very good thing.
In the Q&A period, the panel was asked whether it made sense to have amici briefs in support of motions for rehearing. The 11th Circuit judge said that formerly such briefs were barred in his court, but the rule had been changed because it didn't make sense. Again, however, the problem is notice and timing.
The panel consensus for which type of case was most useful to have an amicus brief was the same for the US Sct and lower courts – those in which the amicus presents a perspective different from the parties, explaining the implications of the issue before the court on non-parties. Conversely, amici briefs are least helpful when they simply re-hash the parties' arguments (unless the litigants have done a poor job). Prof. Morrison noted that some amici briefs are filed just to show the flag, not for their content, and that no one actually reads such briefs, either clerks or judges, past the first page or so. He cited as a particularly useful amicus brief one filed by a broad array of businesses supporting striking down DOMA, which explained, from a practical perspective, how difficult it is to live with a patchwork of differing federal and state laws in this area. Professor Morrison said that one effective amici brief before the Supreme Court at the level of seeking grant of cert was filed by 75 administrative law professors, who all agreed that a D.C. decision had been incorrectly decided under the APA. Since getting 75 professors to agree on anything is earth shattering, this point resonated.
With respect to timing, AAAL members decried a practice in some jurisdictions allowing amici briefs to come in late with no chance to respond. It is almost as bad, some opined, when one can respond, but in a separate brief at additional cost. Hence the perferred schedule was submission of the amicus brief shortly after the principal brief of the party whom the amicus supports, as provided in the Federal Rules of Appellate Procedure, with Prof. Morrison suggesting a two week span instead of the one week as now provided under those rules would allow for more targeted and shorter amici briefs.
With respect to the somewhat counterintuitive situation of having to rely on a developed fact record as a party, but amici then coming in and pronoucing any fact they want as gospel, the general consensus was that allowing amici to be free and easy with their assertions was ok generally, as long as the reviewing court accepted those assertions for what they are – just assertions and not record fact. (One person noted that when an amici basically attempted to file an expert report to shore up one side's position,they filed a Daubert motion). There is no point in saying amici can't do this, because first, the subject usually involves public policy, which often doesn't come up in developing the trial record, and second, there wasn't much difference between the assertions in an amici brief about potential ramifications of a decision and a party answering the court's question in oral argument asking the same thing.
With respect to amici participation in oral argument, the judge said he saw it happen in one case with very special facts, but it does not happen often.
FInally, to make you feel good about the state we live in, one speaker noted that sometimes amicus briefs are filed in states where judges are elected to let the judges know that they are being watched — the group filing the brief is telling the judges that how they vote in the case and on that issue will be remembered come election time.