Chapter 12 Writing Amicus Briefs

LibraryHandling Appeals in Arkansas (2015 Ed.)

WRITING AMICUS BRIEFS

Kelly S. Terry and David R. Raupp

A. Introduction............................................................................................................... 12-1

B. The Requirements for Amicus Participation..................................................... 12-2

1. Motion to Participate (or For Leave to File) Amicus Brief................ 12-3

2. Timing of the Motion and Brief............................................................... 12-4

C. The Purpose of the Amicus Brief.......................................................................... 12-5

D. Other Tips on Writing an Amicus Brief.............................................................. 12-8

1. Don’t Forget the Case Before the Court................................................ 12-8

2. Keep the Amicus Brief Short...................................................................... 12-9

3. What Courts Are Most Interested In...................................................... 12-9

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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 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...

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