Parties to a litigation file statements to a judge (or judges) to argue why their side should win whatever issue is under consideration. But outsiders may also be able to submit arguments to the judge, asking the judge to consider the consequences of their decision and raising issues that the parties may not have included. These “amicus curiae briefs” are common in appellate courts and provide an opportunity for interested people to explain why a court should decide a certain way.

Why should you read this post about amicus briefs?

You’re stunned at the sheer volume of documents that people submit in a lawsuit and want to learn that sometimes there are even more documents.
You care what unrelated people to a dispute have to say about who should win.
Your organization wants to spend legal fees on a case they’re not in.

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Who Files Amicus Briefs

Many amicus briefs come from industry organizations. So if there is a big dispute involving an insurance company, and the decision is likely to impact other insurance companies, an organization of insurance companies may file an amicus brief to alert the court about that impact. This happens a lot: the National Association of Insurance Commissioners actually lists on its website the various amicus briefs it has filed in different cases. Chambers of commerce are also frequent filers.

Amicus briefs may also come from nonprofit groups that advocate for a particular interpretation of the law. For example, the ACLU, the National League of Cities, and the National Organization of Women, each submit amicus briefs in cases they believe will have an impact on the causes they champion.

Law professors also frequently file amicus briefs. As people who study the law, they have a perspective about broader implications in legal decisions and the practical impact of those decisions. They also recognize that their academic positions give them credibility and possibly the air of neutrality in the dispute between the parties when offering insight into how the court should rule.

Government entities and politicians may also file amicus briefs. While they do so nominally to advocate for a position that may help their constituents, many do so to publicly state a position and align themselves politically with a particular cause. Frequently, for example, Republican politicians and states governed by them will file amicus briefs in lawsuits that challenge legal interpretations that produce outcomes that they view as anti-business or not conservative.

And sometimes prominent people and organizations file amicus briefs to make a public comment about a case.

Amicus Brief Procedure

Different courts have different procedures for filing an amicus brief. The U.S. Supreme Court allows litigants to offer a “blanket consent” to anyone who wants to file an amicus. Without that consent, private parties need to ask the court’s permission.

Amicus briefs are still formal documents, not just a comment in a website’s comments section. This means that, even though a brief may nominally come from a person or organization, it is really written by a lawyer and in the style of a legal argument. The brief must explain who the “amicus” (the “friend of the court” who is offering the brief) is, why they have an interest in the case, and then set forth the amicus’s argument.

Once the brief is written, the lawyer files the brief and usually does not get the opportunity to make any further comment or argument. The brief is then publicly available on the court’s docket for everyone to see.

The Impact of Amicus Briefs

I think it is rare (but not unheard of) that an individual amicus brief persuades a judge and changes the outcome of a case. The parties themselves have a strong incentive to make the most persuasive arguments in their own briefs. And some cases involve so many amicus briefs that a judge couldn’t possibly read them all, and so a judge may see only a brief summary from a law clerk of the amicus brief.

I do think that amicus briefs may provide judges with arguments and citations that may help them articulate the decisions they were probably going to make anyway. Judges cite facts and theories from amicus briefs in their decisions and questions, which indicates that these briefs provide some utility in their work.

I think the biggest impact, however, is in public opinion. Amicus briefs often get news coverage, which may attract public opinion to a case. This public opinion may not necessarily affect the outcome of the case, but could affect the relevant policy in the future.