Chapter 12 Writing Amicus Briefs

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 12 WRITING AMICUS BRIEFS
Kelly S. Terry and David R. Raupp

A. Introduction

If it is true that good lawyers avoid a fight, amicus curiae attorneys are perhaps a poor lot, as they go looking for them. The work of such lawyers, after all, is getting their clients into fights they did not start. Knowing which fights to join is a matter of being attuned to litigation trends and keeping current with the appellate cases in the practice areas that matter to your clients. How you develop the expertise to do that well is beyond the scope of this chapter, but surely imagination plays as big a role as talent.1 This chapter's chief purpose is to ensure that, once you have found an appellate fight that might benefit from your participation as an amicus attorney, you succeed in timely filing a brief that the court will accept. When you succeed, you will join a group of lawyers including no less a legal luminary than former Justice Thurgood Marshall. See Davis v. State, 206 Ark. 726, 177 S.W.2d 190 (1944).

B. The Requirements for Amicus Participation

The controlling rule is always the first place to start. The rule on "Amici curiae attorneys" is found at ASCR 4-6, and reads:

(a) Briefs. Amici Curiae attorneys may file briefs with the permission of the Court. The motion for permission should state the reasons why such a brief is thought to be necessary. If the amicus brief supports the appellant's position or is neutral, it is due at the same time as the appellant's brief; if it supports the appellee's position, it is due at the same time as the appellee's brief.
(b) Oral arguments. Amici Curiae attorneys will not be permitted to participate in oral arguments.
(c) Petitions for rehearing. Amici Curiae attorneys will not be permitted to file a petition for rehearing in their own names and may participate only by first securing permission of the regular attorneys or of the Court to join in the motion or brief.

1. Motion to Participate (or for Leave to File) Amicus Brief

Because the rule has few requirements, and offers even less guidance, one must turn to the cases to know its limits. The first is that there is no right to appear, as amicus briefs may be filed only with permission. "Whether or not to allow the amici brief is a matter within the appellate court's discretion." Arkansas Dep't of Human Servs. v. Couch, 36 Ark. App. 241, 242, 821 S.W.2d 67, 68 (1991) (per curiam). This limit is enforced by the rule's principal requirement — a motion explaining why an amicus brief is necessary. This explanation is inextricably bound to the purpose of the brief, which is discussed in Part C of this chapter. As noted there, the courts have better explained what that purpose should not be than what it should be.

Nevertheless, there are two points of emphasis for the contents of the motion. First, it should declare an interest in more than only the outcome of the particular case in which the brief is to be filed. Couch, 36 Ark. App. at 243, 821 S.W.2d at 69. Thus, lending only what has been called the "political" weight of an amicus party to one side does not state an adequate reason to file an amicus brief. To be sure, the amicus party will likely (but need not) have an interest in one party prevailing; but it should state its reasons (if any) favoring a particular outcome in terms of the case's legal significance to the interests of the amicus, beyond the parties' interests. If the amicus party's motion fails to state why its brief is necessary, the court will deny the motion. Curry v. Franklin Electric, 30 Ark. App. 139, 139, 783 S.W.2d 76, 77 (1990) (per...

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