24 August 2015
Friendships can be deeply rewarding, but also confusing and complicated—both in life, and in court. Just like relationships in the real world, the submission of amicus (or "friend of the court") briefs in New York is governed by a host of rules and considerations—often unwritten, and sometimes confusing. If presented effectively, and submitted in accordance with the courts' varying (and often quite unfriendly) procedural rules, amicus briefs can be powerful tools of appellate advocacy. But without careful attention to process, even the most persuasive brief may not be read by a judge. To guard against that possibility, we have assembled the following practical guide for counsel representing amici in the New York appellate courts.
How to File an Amicus Brief
As one might expect, the New York Court of Appeals has the most well developed rules governing amicus submissions, both in terms of substantive criteria and procedural guidance. The four departments of the Appellate Division, by contrast, do not have comprehensive sets of rules on the subject. While some of the intermediate courts are better than others in this respect, each leaves certain things—and in some cases everything—untouched in its official rules of procedure. That is not to say that these courts do not have preferences or expectations for potential amici; it is just that these expectations are not always codified or published. For that reason, a call to the clerk's office—as early as possible after counsel is retained to represent a potential amicus—is a key step in making sure that the client's submission will be accepted.
Despite local variation, there are three basic components that are uniform: Every potential amicus must (1) move the court for permission to participate in the appeal; (2) append the proposed brief to the motion (with few exceptions discussed below); and (3) file sufficiently in advance of argument to allow the court to rule on the motion before hearing the appeal.
Make a motion for leave. Amici are, by definition, not parties. Therefore, they may only participate in an appeal with permission of the court. This means that potential amici must move for leave to file a brief.
The Court of Appeals and the Fourth Department have written rules governing the content of such motions. In the Court of Appeals, an amicus must demonstrate that (1) "the parties are not capable of full and adequate presentation," without assistance of the amicus; (2) the amicus "could identify law or arguments that might otherwise escape the Court's consideration"; or (3) the amicus "would [otherwise] be of assistance to the Court."1 In the Fourth Department, the rule is simpler: An amicus must "briefly set forth the issues to be briefed and the movant's interest in the issues."2
The First, Second, and Third Departments do not have equivalent rules. As a general matter, though, they seem to abide by similar criteria to that of the Court of Appeals.3 More than once, in fact, we have been directed by members of these courts' clerks' offices to consult the Court of Appeals rules for guidance on the content of amicus motions.
Regardless of venue, a good motion for leave to participate should do the following:
1. Persuasively describe who the amicus is. Often, a proposed amicus's identity alone will indicate why it is interested in an appeal. But not always. Thus, in most cases, an effective description of the movant can signal to the court why it makes sense to permit amicus participation. In particular, if there are certain aspects of the amicus's background that are especially salient but that would not be obvious from its name, the motion should highlight them. For example, if a trade group has a history of fighting for civil rights protections, that history should be emphasized in a discrimination-related appeal.
2. Explain why the amicus is interested in the appeal. The motion should also connect the amicus's identity to the specific appeal. Its motivation for wanting to participate should be clear. If the amicus is a party in litigation presenting the same or similar issues, the motion should say so and explain how the court could benefit from learning about the movant's experience. If the amicus is a trade association formed to advocate on behalf of a particular industry, the motion should explain how the issues in the appeal will impact that industry. If the amicus is an individual or group with a particular expertise in the subject matter of the appeal, the motion should explain that expertise.
Append the proposed brief. The Court of Appeals and the Fourth Department both specifically require that a motion for leave be accompanied by the proposed amicus brief itself.4 And while not expressly mandated by any rule, in our experience, the other departments of the Appellate Division strongly prefer the same approach. This makes sense: the courts want to see if the amicus's participation actually will add value.
Including the brief with the motion is also tactically beneficial for amici: The court is likely to refer to the brief—the very document the amicus wants it to consider—in ruling on the motion. If for whatever reason (we really cannot think of any save perhaps time pressure) a potential amicus moves for leave to file without also submitting its brief (in a court that allows that), the motion papers therefore should be more extensive and that much more compelling.
File sufficiently in advance of argument. Where the courts most widely diverge is in their expectations concerning when amici should file their submissions. Only the Court of Appeals has written rules on timing. The clerk's offices of the Appellate Division departments generally acknowledge that there are no official deadlines, but in our experience most do have some sort of general preference. We collect our experience below, but counsel should always call the relevant clerk's office ahead of time to make sure they are complying with local practice.
Court of Appeals. The Court of Appeals has different rules depending on the type of appeal. A party seeking to submit an amicus brief in anything but an appeal "in the normal course" should consult the rules. For ordinary appeals, amicus submissions must be made returnable no later than the court session before the appeal is scheduled for argument.5 Because motions are returnable only on Mondays, this means that amicus submissions should have a return date of the last Monday of the session immediately before the appeal: "If [, for example,] the appeal is scheduled for oral argument in a February session, the motion must be returnable no later than the second Monday of a two-week January session."6 If argument is scheduled during the January or September sessions, though, the return date must be no later than the first Monday in December or the first Monday in August, respectively.7 Consistent with the CPLR, anywhere between 8 and 15 days' notice of motion is required depending on the manner of service.
First Department. The First Department clerk's office recommends filing amicus papers "as soon as possible" after the appeal is perfected—that is, after the opening brief and record are filed. This is because motions in the First Department generally take between four and six weeks to be ruled on, and absent an adjournment, merits briefing by the parties is generally complete approximately six weeks after the filing of the opening brief. A schedule like this should pose little practical difficulty for an amicus supporting the appellant, because such a party will likely know when the appellant plans to file its initial brief and what that brief will argue. Amici supporting a respondent, however, may have a harder time with this schedule; respondents' supporters may not know what issues will be raised, by either party, until the appellant's brief is filed. Our best advice is to coordinate as early as possible with counsel for the respondent, and to consider filing a motion for permission to participate before completing the brief.
Second Department. To our knowledge, the Second Department has neither an official nor an unofficial rule for the timing of amicus motions. Best practice is to file as early as possible—ideally at the same time as the party being supported. This should give the court enough time to consider the motion before scheduling argument. (As in the First Department, non-emergency motions in the Second Department take several weeks to be resolved.)
Third Department. The clerk's office for the Third Department strongly prefers that amici file their motions and briefs as soon as possible after the filing deadline for the party they seek to support. This does not mean, however, that a later-filed motion will necessarily be denied. Especially when the delay is understandable—such as when the amicus was unaware of the appeal until after it had been fully briefed—the court will grant a motion for amicus participation that is filed outside the normal timeframe. But in a case like that, it is in counsel's interest to acknowledge and explain the unusual timing in the motion.
Fourth Department. As in the Second Department, we are unaware of a clear preference for amicus timing in the Fourth Department. The general advice from the clerk's office is reasonable and unsurprising: try not to inconvenience the court by leaving little time for the judges to rule on the motion and, if the motion is granted, to read and consider the brief before argument. In a recent conversation, one clerk told us that an amicus should file at least "a few weeks" before argument in order to ensure adequate time for the court's consideration.
How to Make an Amicus Brief Effective
Understanding and obeying the procedural rules is only half the battle. Like real friends, not all amici are equally valuable. Below are a few strategic considerations that amici, and the parties they support, should bear in mind to increase the likelihood that their "friend of the court" submissions have an impact (or that "friends" of the adversary have as little impact as possible).
Recruit the right amici early. A party can benefit significantly from having the right amicus support. Lawyers handling appeals should always consider whether amicus participation might be useful in persuading the court of their client's position. They should consider who a decision might affect or would otherwise be interested in participating. This might include: parties in different cases, industry participants, trade associations, special interest groups, government agencies, or experts in a specialized area of the law (including law professors and practitioners). Clients will be a valuable resource in identifying and contacting potential amici.
Potential amici do not necessarily need to wait for a party to reach out to them, though. Lawyers should keep abreast of appeals in which their clients are not directly involved but that raise issues that could impact their clients. One excellent resource is this very publication: The New York Law Journal publishes a weekly list of newly filed Court of Appeals cases, along with descriptions of the issues involved in each. Where appropriate, lawyers should suggest that their clients consider serving in an amicus capacity or helping to garner amicus support.
Coordinate the briefs. Ideally, all briefs submitted in support of a particular outcome will present a united front. For that to occur, coordination is crucial. A party and its amici should discuss the issues before the amici get to work, so that the party can explain what arguments it plans to make and can discuss with the amici which issues, arguments, or other points it would be useful for them to address and how. Once the various roles are understood, exchanging briefs (in both directions) is advisable to ensure that the briefs that are ultimately filed work in unison (and at least not at cross-purposes).
Provide something "new." An amicus brief is not about simply rehashing the parties' arguments. Indeed, the Fourth Department's rules expressly forbid that approach.8 The job of an amicus is to complement the arguments of the party it supports. There are a variety of ways for an amicus to do so effectively. Here are a few:
1. Supplement the party's brief.9 Very often parties—whether because of length restrictions or some other reason—will not be able to treat every worthwhile issue with an appropriate level of detail in their briefs. Legal arguments that are available but unaddressed or seriously underdeveloped in a party's brief can form the basis for a brief by an amicus with some particular expertise or interest in those issues. But when an amicus is going to bolster an argument that has been made by a party, special care should be taken to avoid the impression that the brief is being used to evade length restrictions.
2. Explain the potential consequences of a decision. Good appellate judges are keenly interested in the long-term precedential consequences of their decisions, and amicus briefs are often good vehicles for discussing those consequences. The parties can generally be expected to discuss the immediate consequences of a decision, but amici are often the right parties to focus on consequences for groups who are not presently before the court and whose interests might therefore be neglected or misunderstood.
3. Present a broader survey of the issue's treatment. In New York appeals, the parties will naturally focus on state-specific precedent and concerns. However, the court may find it helpful to understand how the issues involved in the appeal have been treated elsewhere. The Court of Appeals, in particular, often expresses interest (in questions during argument and in opinions) in how particular issues of first impression have been resolved by other states' high courts. An amicus brief that situates an issue or argument within a national framework can be a worthwhile addition to a party's cause.
Respond on the merits when appropriate. As a general rule, we do not recommend opposing a potential amicus's motion for leave to participate. Opposition to participation is unlikely to be successful; at worst, it makes the party opposing the motion look frightened of what the potential amicus has to say. On the other hand, it is definitely in a party's best interest to address the meritsarguments in an amicus brief—particularly when the amicus brief is persuasive. In the Court of Appeals, the rules actually provide parties with an opportunity to file a separate brief responding to the arguments of a hostile amicus. The brief must be filed within 15 days of leave being granted.10 This is a generous rule; we recommend that parties avail themselves of the opportunity unless an amicus submission is self-evidently unpersuasive. None of the Appellate Division departments has a similar rule, but that does not mean that parties cannot respond to amicus arguments: If the amicus files at the same time as the party it supports, then a respondent can respond in its principal brief, and an appellant can respond in its reply. And if an amicus files after briefing is complete, a party may wish to move the court for permission to file a short responsive letter or brief.
1. 22 NYCRR §500.23(a)(4).
2. 22 NYCRR §1000.13(k).
3. 8 N.Y. Prac., Civil Appellate Practice §8:4 (2d ed.).
4. 22 NYCRR §§500.23(a)(1)(i), 1000.13(k).
5. 22 NYCRR §§500.23(a)(1)(iii).
6. New York Court of Appeals, Civil Motions Frequently Asked Questions, https://www.nycourts.gov/ctapps/civilmotfaq.htm.
7. 22 NYCRR §§500.23(a)(1)(iii).
8. 22 NYCRR §1000.13(k).
9. See Regan Wm. Simpson, "How to Be a Good Friend to the Court: Strategic Use of Amicus Briefs," 28-SPG Brief 38, 40 (Spring 1999).
10. 22 NYCRR §500.12.
Reprinted with permission from the August 24, 2015 edition of New York Law Journal © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.