The IADC amicus brief program: its increasing success and influence.

• Author: Sungaila, Mary-Christine
• Position: International Association of Defense Counsel

ONCE rare, amicus curiae or "friend of the court" briefs are now filed in the majority of appellate cases heard by the United States Supreme Court and various state supreme courts. In the United States Supreme Court, amicus briefs were filed in thirty-five percent of the Court's cases in the 196-566 term; by 1995, one or more amicus briefs were filed in nearly ninety percent of the Court's cases. (1) An analysis of the 1999 to 2008 terms showed that in civil cases the average filing rate for amicus briefs was 92.4% (with a high of 100% amicus participation in all civil cases in the 2007 term). (2) The number of civil cases before the Court each term ranged from thirty-nine to sixty-one; the total number of amicus briefs filed each term in those cases ranged from 344 to 627. (3)

"Historically, state courts were more likely than the U.S[.] Supreme Court to limit the role of amicus participation in appeals." (4) Nonetheless, the number of amicus briefs filed in state high courts tripled in the 1980s. (5) The growth in use of amicus briefs has not been uniform across all states, however. The frequency of amicus participation between 1960 and 2000 was highest, according to one study, before the Florida, Massachusetts, North Carolina and Washington high courts; two previous studies revealed the top five states for amicus participation to be California, Michigan, New Jersey, New York, and Ohio. (6)

My own survey of amicus filings in the California Supreme Court reveals high amicus participation in the past decade. The amicus filing rate was 59.7% from 2000 to 2009 in civil cases; out of 707 cases decided by the court, 422 had one or more amicus briefs. (7) The average number of amicus briefs filed in each case is also increasing. In the California Supreme Court, 1,868 amicus briefs were filed in 422 of the 707 civil cases decided by the court between 2000 and 2009. (8) Indeed, the California Supreme Court has even invited the submission of amicus briefs in some cases. (9)

With increased amicus participation has come increased amicus influence. Amicus briefs have repeatedly provided the United States Supreme Court with information and legal theories that have influenced the Court's decisions. The majority opinion in Roe v. Wade (10) expressly referred to positions urged by amicus groups and relied heavily on historical, social, and medical data provided by amici. In the companion case of Doe v. Bolton, (11) the majority expressly relied on data provided by amici showing that facilities other than hospitals are adequate to perform abortions, and rejected the state's contrary argument. In Grutter v. Bollinger, (12) the Court upheld the race-based admissions policy of the University of Michigan Law School; at oral argument and in the Court's decision, the justices referred to and relied on the amicus brief of retired military officers. (13) And, in the 2013 term, the Court advised counsel for parties in a case in advance of oral argument that they should be prepared to address an argument made in an amicus brief filed in the case.

The Court's citation of amicus briefs has also increased. According to one study, United States Supreme Court justices directly mentioned at least one amicus brief in eighteen percent of the cases in which amicus briefs were filed between the 1969 and 1981 terms. (14) Another study reveals that, "of all [United States Supreme Court] opinions published between 1986 and 1995, approximately fifteen percent cited at least one amicus brief by name, and thirty-seven percent referred to at least one amicus brief' without citing or naming it. (15) More than sixty-five percent of the amicus briefs filed in the United States Supreme Court in 1992 contained information not found in the briefs of the direct parties. (16)

A survey of amicus brief filings in State supreme courts showed that amicus briefs were acknowledged or cited in thirty-one percent of cases, and arguments made in amicus briefs discussed in eighty-two percent of the cases sampled. (17) When they were asked what percentage range "most accurately describes the number of amicus curiae briefs in your court which are influential," "27 percent of the justices regarded fewer than a quarter influential, 32 percent considered between a quarter and one-half influential, and 36 percent considered between one half and three quarters influential." (18)

1. The IADC Amicus Program

   Against this backdrop, beginning in the mid-2000's, the IADC formalized its amicus program and began to increase its amicus participation. Under the leadership of Texas appellate lawyer Lauren Harris, the Amicus Curiae Committee began participating in cases before State supreme courts. The IADC has since grown the program to include cases before the United States Supreme Court and some courts of appeal. As the Appendix to this Article shows, since 2007, the IADC has participated in twenty-three cases: thirteen cases at the merits and/or certiorari stage, and ten cases at the review or certiorari stage alone.

   The IADC has an overall record of prevailing in 70 percent of the merits cases in which it has participated, and a 100 percent win rate in merits cases it has participated in during the last four years. In the process, the IADC has helped shape the law surrounding product liability, arbitration, class actions, attorney client privilege, punitive damages, civil discovery, standing, jurisdiction, and tort reform. The IADC has also built alliances with other organizations, often joining briefs alongside PLAC, the American Chemistry Council, the National Association of Manufacturers, the Washington Legal Foundation, and the Atlantic Legal Foundation.

   This Article reviews two State appellate court decisions and one U.S. Supreme Court decision to demonstrate the depth, breadth, and influence of IADC amicus briefs in cases in which it participates.

2. Case Studies: State Appellate Court Victories

   At the Court of Appeal's invitation, the IADC participated as amicus curiae in a California case with a broad impact on discovery against corporate defendants. (19) Plaintiffs in the case filed a product liability action arising from an accident that took place in Idaho, and sought to depose in California five employees of Toyota who were Japanese residents. (20) They were designated as individual employees, not as corporate representatives. Toyota responded that the depositions could take place in Japan, but not California, and cited a California statute that limits the power of California trial courts to compel the attendance of nonresidents at deposition and trial. The trial court granted the motion to compel. Toyota filed a writ petition. The Court of Appeal agreed to hear it on the merits, held argument, invited amicus briefing from interested parties (including the IADC), and then granted the petition and remanded to the trial court to vacate the order compelling the depositions to take place in California. (21)

   "Code of Civil Procedure section 1989," the appellate court observed, "provides that a nonresident of California is not obliged to attend as a witness in this state. After a careful review of the relevant statutes and related legislative history, we conclude that this residency limitation applies not only to trials, but also to discovery. As a result, the trial court has no authority to compel Japanese residents to come to Los Angeles to attend depositions. Neither the legislative history nor the meager case authority on this issue persuasively provide otherwise." (22) The appellate court unanimously concluded that " [t]he plain language of the statutory scheme and the legislative history of that language fully support the conclusion that a trial court cannot order a non-resident to appear at a California deposition. This conclusion is not limited to individual witnesses, but also applies to a court order directing that a party produce for deposition a specifically named non-resident witness (e.g., an employee, office, or director of a corporation)." (23)

   Nor could California courts independently gain authority to compel in-state depositions of nonresidents. As the IADC pointed out in its amicus brief, (24) while the California Supreme Court has recognized that courts have "fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them," (25) that power "may only be exercised to the extent not inconsistent with the federal or state Constitutions, or California statutory law." (26) Moreover, while the matter of taking depositions was a frequent proceeding in courts of equity in England, those courts routinely issued commissions to depose foreign witnesses abroad, rather than requiring them to come to England. Accordingly, even absent the statutory scheme, the traditional power of equity courts was consistent with the method urged by Toyota and followed by the appellate court: taking the deposition of foreign witnesses in their home country, rather than compelling them to visit the United States to provide testimony.

   A year later, the Illinois Supreme Court issued an attorney-client privilege ruling that appeared to track many of the arguments made in the brief filed by the IADC in the case. At the heart of Center Partners, Ltd. v. Growth Head GP, LLC, (27) was whether the attorney-client privilege would survive the extrajudicial subjectmatter waiver doctrine. In a case of first impression, (28) the Illinois Supreme Court was faced with choosing between two alternative approaches: one that limited subject-matter waiver to judicial disclosures and another that expanded waiver to include...