Amicus curiae briefs are submitted by non-parties to an appellate case. They present information for the court to consider in deciding the appeal. However, certain rules govern the filing of these briefs. An experienced appellate attorney can explain whether and how to file one. Below we explore these briefs in both California’s state and federal (Ninth Circuit) appellate courts.
Defining the amicus curiae brief
Amicus curiae means “friend of the court.” An amicus curiae brief is not filed by a party to an appeal. Rather, someone outside the case with an interest in its outcome will file one. An amicus curiae brief can be filed in both state and federal appellate courts. Advocacy and public interest groups, trade associations, and other entities may file one of these. So may the government or an interested individual.
These briefs should provide useful information to the court. In other words, they don’t simply side with a party to the appeal. Instead, they should give arguments for the court to evaluate in deciding the appeal. These briefs also must usually indicate what interest the filer has in the case.
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California Court of Appeal rules
At the state appellate level, California imposes certain requirements under the Rules of Court. Fourteen days after the appellant’s reply brief filing, an interested party may request permission to file an amicus brief. An application must be sent to the presiding justice.
The application must state the applicant’s interest in filing a brief. The applicant must also explain how the brief will help the court decide the appeal. Also, the application must identify any party in the appeal who wrote, funded, or prepared the brief. Anyone else who paid for preparation of the brief must also be identified.
The proposed amicus brief is submitted with the application. The cover of the brief must indicate which party in the appeal, if any, the amicus party supports.
If the court permits the amicus curiae brief, any party to the appeal may file an answer to it. The answer must be served on all parties, including the amicus party.
Ninth Circuit (federal) rules
The Ninth Circuit Court of Appeals generally requires someone wishing to file an amicus curiae brief to obtain permission. The U.S. government, an officer or agency, or a state government does not need permission. For everyone else, either the court must allow the brief or all parties must consent. To request the court’s permission, the amicus party must file a motion for leave to file.
Similar to state rules, the motion must indicate the amicus party’s interest in filing the brief. It needs to also state why the brief is desirable and how it will be relevant to the outcome. In addition to complying with other rules, the brief must:
- Identify the amicus curiae party, its interest in the case, and by what authority it files
- Indicate whether it supports any party to the appeal
- State whether it supports affirmance or denial of the trial court decision
- Provide a disclosure statement (under Rule 26.1) if the amicus curiae party is a corporation
- Include a table of contents, page references, and list of authorities cited
- Indicate who wrote or paid for the brief (similar to the California state appellate rule)
- Make an argument for the desired outcome
- Abide by certain length requirements
If the amicus filer supports a particular party, it must wait for that party to file its principal brief. Then, the amicus filer has 7 days to file its brief. If not supporting a party, the amicus party must file within 7 days of the appellant’s or petitioner’s principal brief.
Is an amicus curiae brief a good idea?
In some cases, it’s a good idea to inform the court of how other states or circuits have handled similar issues. It may also be advisable to file if the appellate decision could set a significant precedent. Other reasons to file an amicus curiae brief include:
- The outcome of the appeal affects the interests or rights of the amicus curiae party
- The amicus party has expert knowledge of the subject matter of the appeal
- There is concern the appellate court will not be aware of certain relevant information
- Filing a brief may raise the prominence of the individual or entity involved
Gusdorff Law advises parties who are considering filing amicus curiae briefs. To learn more about them, or to get started on your California appeal, contact us today.