Amicus brief writing is all the rage. The U.S. Supreme Court alone now receives between 600 and 1,000 amicus briefs every year—an average of 7 to 12 for each argued case, nearly double the number filed in 1995, and eight times the volume in the 1950s. Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901, 1902 (2016). Federal circuit courts and state appellate courts—and even trial courts—are also seeing more and more amicus briefs. How can counsel filing amicus briefs stand out from the crowd and make an impact? Based on experience, I’ve identified three keys to preparing impactful amicus briefs: pairing with the right client, making the right kinds of arguments, and mustering the right types of materials.
The Right Client
Pairing with the right client is essential for making an impact with your amicus brief. Most importantly, amicus parties need to match well with the case: What special expertise or experience does this particular client bring to this particular case? There should be some unique perspective or knowledge that your client can add. For example, when we represented the National Association of Criminal Defense Lawyers (NACDL) in Vartelas v. Holder, which challenged the retroactive application of a statute restricting immigrants’ right to travel abroad for short periods, we leveraged our client’s expertise to make arguments about the practical functioning of and impact on the plea bargain process. The “interest of amici” section of the brief should then be tailored to highlight your client’s specific expertise and experience directly relevant to the case.
