Will Amici Help or Hurt?

Years ago, I served as the amicus chair for the New York State Association of Criminal Defense Lawyers. With surprising regularity, issues arose that could have significant impact on the state of the law that would impact not only the parties in a specific case, but the practice of criminal law in general. When we learned of these cases, we cranked up the amicus machine to get our two cents in. Sometimes, it was because the issue at stake was too important not to get involved. Other times, it was because the lawyers involved weren’t up to snuff, and we didn’t want to lose on an important issue because the defendant was represented by a mediocre (or worse) lawyer.

But there were problems. The first, and most obvious, was that it was often impossible to find anyone willing to write the amicus brief. This was pure pro bono stuff, and most criminal defense lawyers have to work for a living. Writing an amicus brief was a big deal, a lot of work, and there was no money and little glory for the author. I had to beg people to become an author, and most of the time came up empty handed. Much of the time, I wrote the briefs myself because there was no one else willing to do so. Whether it mattered to the law was hard to say, but what else could I do but try?

Things have changed a great deal since then. There are many organizations dedicated to causes who will come in as amicus today that didn’t exist back then. Causes are a lot bigger today, and they are funded to do this work. Then there are law school clinics who do this work as a training ground for law students, similarly dedicated to causes where the cost is not an issue. Indeed, many go searching for opportunities for amici involvement, and often leap into cases where there is no real need for amicus except as a practice opportunity.

The problem now is that the parties are no longer just litigating against each other, but litigating against amici who show up after the papers are filed and then have to do a second or third round of briefs to address the new points raised by amici, the arguments of adversaries having already been addressed. Not only does this mean a lot of extra work, but the time and cost has to be eaten by someone. If the client is paying, he’s now paying to do with the same job more than once. If not, the lawyer has to eat the cost.

Eastern District of Arkansas Judge Lee Rudofsky has issued a rosy order inviting greater involvement of amici.

When I was practicing law, I often wondered why amicus briefs were generally not filed at the district court level. It occurred to me back then that such briefs could have considerably more impact at the district court level than they have at the circuit court level or even at the Supreme Court. Since taking the bench, my views on the desirability of amicus briefing at the district court level have only grown stronger. While the majority of cases on a district court’s docket don’t warrant amicus briefing, there are a healthy number of cases each year that do.

By way of example, and not limitation, each year a handful (or two) of cases on my docket present really serious issues of constitutional law or statutory interpretation that are not directly controlled by binding precedent. And I have found that, in these cases, the parties often do not have the necessary time or economic resources to devote to full analyses of the text and history of the provision or provisions at issue. In such cases, my judicial process and my decisions would likely benefit from amicus briefing on the original public meaning of the disputed provision or provisions. I can imagine amici providing, among other things, important historical context, in-depth corpus linguistics analyses, or detailed structural arguments that might not make it into the parties’ briefing.

Judge Rudofsky, who was born the year I graduated from Cornell, isn’t wrong about the benefits of amici to a judge, but enjoyed working at Kirkland and Ellis where he never had to worry where his next paycheck was coming from. He’s quite right that parties often lack the time or resources to devote to more scholarly analyses of issues, but this is an adversarial system, not inquisitorial, and the objective of a party isn’t to address the theory that might be of academic interest but to beat the adversary. And when the adversary includes amici, it’s that much more to do. Even when amici say they aren’t appearing for either side, they are. Somebody is going to get burned by amici.

I recognize that amicus briefing is a costly and time-consuming endeavor. However, it is also a great way for more junior attorneys at law firms, non-profits, corporations, and government entities to gain valuable experience, make a good reputation for themselves, and get some oral argument time. Accordingly, in addition to making it known that I invite and am grateful for amicus briefs in my cases, I wish to extend the following notice. Anyone who is the principal drafter of an amicus brief on either a dispositive motion or a motion for preliminary relief in one of my cases will be guaranteed at least ten (10) minutes of oral argument time so long as the person has been a lawyer for fewer than seven (7) years. The parties in the case may not in any way fund the amicus brief or the drafter’s attendance at oral argument.

It appears that Judge Rudofsky’s concern for cost and time relates more to amici than to the parties before him. Similarly, his invitation reflects concerns for “junior lawyers” to gain experience, which Eugene Volokh likens to the “teaching hospital model.” This sounds grand, except litigation is adversarial and there’s nobody in a hospital rooting for the disease to prevail. Much as Judge Rudofsky’s interests and invitation have some legitimate virtues, the burden it places on litigants should amicus involvement become commonplace in mundane suits may make judges, think tanks and law profs happy, but will put many litigants in untenable situations, fighting off not just their adversary but amici as well.

4 thoughts on “Will Amici Help or Hurt?

  1. Chris Van Wagner

    Let’s see. We fight the prosecutor. We fight the investigators. We fight the public. We fight the press. We fight the alleged victims. We often fight the judge. And now, judge, we fight BigLaw looking for oral argument experience? Many a time as the lawyer for the accused I mean convicted person, I didn’t get two minutes into an oral argument in Chicago before being cut off by the brains of the Seventh Circuit. But sure. Let’s add more adversaries on the case. Why not?

  2. Drew Conlin

    If I’m reading correctly, there was once a time where you practically had to beg to get participation.
    Could you travel back in time , would you say to yourself… Br careful what you ask for you just might get it?

  3. Isaac Koch

    Does anyone remember when trial was to the death? What would be so hard about staying out of court with all one’s might, so when in court the benefit of amici does not constitute punishment?

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