Eugene Volokh has put together a series of posts on being amicus curiae, friend of the court based on the foundation of Mayer Brown’s Federal Appellate Practice book.  Having served as amicus chair for a number of years for the a criminal defense lawyer bar association, I found this to be a terribly misunderstood and poorly utilized weapon in the fight for good law. 

Every day, we’re confronted with bad caselaw.  It doesn’t happen overnight, but inch by inch.  It isn’t entirely an accident.  We could do something about it, but too often we don’t.

While the primary problem may be attributed to a judiciary lacking a meaningful concern for constitutional rights, given that many of the fine men and women who become judges are pillars of society, dedicated to elevation of order over law and firmly on the side of good in the fight against evil (or at least desirous of appearing that way), other problems can’t be blamed on the judges.  We are at fault, “we” being the voices who should be speaking out in favor of the Constitution and against bad law but instead remain mute.

There are some huge issues sitting on our doorstep that are routinely neglected.  The first is that when an appeal arises that presents a critical issue, one that extends far beyond the interests of a particular defendant but will impact defendants going forward, we watch from the sidelines hoping that the attorney handling the appeal does an adequate job and the praying that the courts come out the right way.  The problem here is that, while we may recognize that a case will produce an overarching rule that will effect us and our clients for years to come, we fail to acknowledge that we have as much at stake as does the individual defendant.  We choose to sit it out.  This is nuts.

One of the foremost uses of our specialized bar associations and interest groups is to speak for the larger group, the broader interests.  Unfortunately, many either can’t be bothered, obsess over collecting dues for self-perpetuation, or exist to give out awards to each other to pretend that we’re doing far better than we are.  They are not serving our mutual self-interest because it’s far more difficult to actually do work, exert effort, pay attention, give a damn.  Getting awards is so much more fun than working hard.  And being a selfish and self-aggrandizing sort of group, most want the kudos but few want to lift a finger to actually produce something useful.

Through amicus work, we could assert our positions, concerns, views and interests into cases of greater interest and import than the mere concerns of any individual defendant.  Counsel for the appellant all too often is an inadequate guardian of the greater interest.  Some simply aren’t good enough lawyers to be entrusted with big issues, and hence decisions come back to bite us in the butt because an appellate lawyer couldn’t manage to put a comprehensive and comprehensible argument together.  This is, I believe, the primary cause on our side of bad law.  Lawyers take cases that far exceed their skill level, and we suffer the consequences of a huge and perhaps needless loss.  We bemoan the result, but failed to lift a finger to achieve a better result.

From the courts’ perspective, it’s one thing to smack down a bad defendant who raises a significant issue, but one where the court would be very reluctant to reverse because this isn’t the sort of person they want to see walk.  When the only voice raised is the lone defendant, the court gets no sense of how the issue will impact others, often many others, who may not be such an unsympathetic appellant.  A bit outcome oriented, you say?  Judges are human.  Also, judges may not appreciate how a decision in one small, seemingly inconsequential case can become a fundamental decision that alters the course of the law for many others. 

Amicus work requires not merely the interest and will of an organized group to make the decision to become involved, but also the willingness of talented lawyers to step up to the plate and do the work.  And here’s the kicker: For Free.  Lest anyone call me disingenuous, I’ve produced dozens of amicus briefs over the years, happily and willingly.  Indeed, when I was in the position of amicus chair and couldn’t find anyone willing to step forward, I did it myself.  I never let a case that I believed to involve a significant issue fall between the cracks.  If no one else would write, then I did.  Someone had to do it.

On this aspect, some of the people who are responsible for bar association amicus work see it as a burden rather than an opportunity.  They refuse to seek out important cases, and wait for cases to come to them.  They challenge those who seek help as to why they are deserving, rather than embrace the chance to improve the law and stand up for what’s right.  It seems like their focus is to do as little amicus work as possible, rather than be there whenever they can be a positive force in the law.  This attitude toward amicus work completely misses the point; if it’s too much trouble, then the reins are in the wrong hands.

I’ve also seen lawyers who agreed to produce the brief drop the ball completely, with the submission date past and a “sorry” as their sole excuse.  On huge cases, mind you.  As an aside, these include lawyers who are long-term bar association mavens whose mouths never seem to close when it comes time to spout facile opinions, but they never seem to manage to find the time or ability to actually do anything.  Plenty of promises, spoken loudly for the whole room to applaud, and no production after the clapping dies down and the promises are forgotten. 

We have a lot of that ilk, desiring to appear to be “important” lawyers but, if one looks under the hood, having done nothing to fulfill the obligations they’ve undertaken or justify their worth.  Beware of our bar association bigshots, whose only interest is becoming very important in the eyes of lawyers who don’t know better and are impressed with official titles. 

Writing amicus briefs is, as Eugene points out, very different than representing the individual on appeal.  It’s all about the issue, not the individual.  It need not be lengthy, and often is far more meaningful and persuasive when directed solely at the critical issue at hand.  Amicus work offers the opportunity to stand back from the details of a case and argue how a decision, one way or another, will affect the state of ithe law and the functioning of society.  It speaks to right and wrong, to philosophical positions, which are often far afield from the arguments that counsel for the appellant might proffer.  Without amicus, these concerns would never be presented to the appellate court, or ineffectively presented, and other interests and arguments will prevail. 

Amicus also serves to let a court know that a case isn’t just about a particular defendant, but that the entire bar is watching them closely because of the larger issue at stake.  If nothing else, this may cause a court to give much more thought to a case, and the issues involved, then it might otherwise.  There are times when the appellant’s counsel has done excellent work, has covered the issue well, and has presented every argument needed, but st
ill would benefit from the assistance of amicus to let the court know just how important the issue at stake is to the rest of the bar. 

In my anecdotal and unscientific experience, amicus curiae briefs are submitted in a mere 20% of the cases in which they should be, leaving 80% of appeals up for grabs for one reason or another.  It is perhaps the most massive failure of the organized bar to impact the incremental growth of the law and to fulfill its mission, assuming it has any mission to fill beyond patting each other on the back. 

Between incompetent counsel, lazy, self-serving,self-important bar association “leaders”, a myopic understanding of what amicus work means and sheer lack of interest, the critical work of amicus curiae has been horribly neglected.  And we’ve got the law to prove it.