Amicus briefs: what have they done for courts lately?

• Author: Wozniak, Carrie Ann
• Position: Appellate Practice

Amicus curiae" means "friend of the court," but how friendly have amicus briefs been to courts lately? Have they been helpful to courts in the decision-making process? This article discusses how often Florida appellate courts cite to or rely on amicus briefs in their opinions and also highlights effective amicus brief writing strategies.

The Florida Supreme Court

From 2007 to 2011, the Florida Supreme Court mentioned amicus briefs in 14 majority opinions. Additionally, one dissenting opinion (1) and one concurring opinion (2) cited an amicus brief. How many amicus briefs are actually filed in the Florida Supreme Court? In 2010, 133 appeals filed in the Florida Supreme Court included at least one merits brief. (3) Of these 133 appeals taken on the merits, amicus briefs were accepted in at least 23 cases. (4) Thus, approximately 17 percent of 2010 cases taken on the merits included at least one amicus brief. (5) Interestingly, in a similar survey concerning Florida Supreme Court cases 10 years earlier in 2001, 228 matters involved merits briefing, and amicus briefs were filed in 43 cases, a rate of almost 19 percent. (6) Thus, the number of amicus briefs filed has not changed significantly over the past decade.

The District Courts of Appeal

The district courts of appeal mention amicus briefs in their opinions as well. Between 2007 and 2011, the Third District Court of Appeal and Fourth District Court of Appeal referred to amicus briefs most frequently--seven times each. The Third District (7) agreed with amici in three cases: In re Adoption of X.X.G. and N.R.G., 45 So. 3d 79 (Fla. 3d DCA 2010); (8) Skylake Insurance Agency, Inc. v. NMB Plaza, LLC, 23 So. 3d 175, 178 (Fla. 3d DCA 2009); and Sims v. New Falls Corp., 37 So. 3d 358, 361-62 (Fla. 3d DCA 2009). In We ingrad v. Miles, 29 So. 3d 406, 410-11 (Fla. 3d DCA 2010), the Third District cited and rejected an argument in an amicus brief. (9) Additionally, the Third District mentioned that amicus briefs were filed in three other cases. (10)

Fourth District opinions agreed with amici in three cases (11) and disagreed with amici in three others. (12) Also, the Fourth District noted in JPG Enterprises, Inc. v. McLellan, 31 So. 3d 821, 823 nn.1-2 (Fla. 4th DCA 2010), that it requested and received amicus briefs from the Real Property Probate and Trust Law Section of The Florida Bar and The Florida Bar Consumer Protection Law Committee, expressed gratitude for their assistance, and summarized their arguments along with the parties' arguments. (13) The First District Court of Appeal has cited amicus briefs four times from 2007 through 2011, but the court disagreed with the amicus argument each time. (14) The Fifth District agreed with amici twice and disagreed once for a total of three references to amici. (15) The Second District Court of Appeal cited amici three times, once to summarize key facts (16) and twice to disagree with amici. (17) To sum up, the district courts of appeal referenced amici in 23 opinions between 2007 and 2011. Based on the number of references noted, Florida's appellate courts do cite amicus briefs they find helpful.

What Makes an Amicus Brief Helpful?

The key to a helpful amicus brief is just that--it must help a court in reaching its decision. In Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 544 (7th Cir. 2003), Judge Posner expressed his views on amicus briefs:

[J]udges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process. (18)

This may be a valid concern in some instances. But Florida courts have occasionally noted the assistance provided by amicus briefs ("As one amicus curiae in this case described the process..." (19)) or expressed gratitude for their help ("We thank the Florida Society of Health-System Pharmacists and Florida Pharmacy Association for the amici briefs filed herein." (20)). On the one hand, an amicus should not reargue the arguments made by the parties to a case. (21) On the other hand, an amicus cannot raise issues not raised by the parties. An amicus and its attorneys do not want to be told that "this issue is not properly before this [c]ourt" when a court addresses their arguments. (22) What is a well-meaning amicus to do?

Be the Right Type of Party in the Right Type of Case

Amicus briefs can be submitted to assist a court in cases evoking great public interest, to help resolve complex issues, or to ensure that a particular argument is made to a court while it is considering the case. (23) These arguments should be presented by the right type of amicus, which will depend on the nature of the case. In the best amicus briefs, the interests of the amici are slightly different from those of the parties to the case, or the amici seek to introduce variations of the parties' arguments or to raise policy concerns that may influence the court's decision. A good amicus brief would make broad arguments concerning legitimate policy implications that would appear too self-serving if made by a party to the case. (24) Groups with specialized knowledge like sections of The Florida...