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BRIEFS FOR THE BRIEF WRITER: Amicus briefs should be clear, on target

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

An amicus curiae, or “friend of the court,” lives in a kind of appellate limbo.

An amicus is not a party. It will not be directly governed by an appellate court’s decision. An amicus is certainly not a party trying to sidestep an untimely notice of appeal. See, for example, Weina by Peyton v. Atlantic Mut. Ins. Co., 177 Wis.2d 341, 347, 501 N.W.2d 465 (Ct. App. 1993).

An amicus is not even “interested” enough to successfully intervene in an appeal under Sec. 809.13, Wis. Stats. Most interventions do and should occur at the trial court level. Nonetheless, intervention is mandatory when one has an interest in the appeal’s subject matter and is so situated that the appeal’s disposition might impair or impede his interest, which is not otherwise represented by existing parties.  Sec. 809.13, Wis. Stats., incorporating Sec. 803.09(1), Wis. Stats. Intervention is permissive (including considerations of delay or prejudice) when one’s claim/defense has a question of law or fact in common with the appeal. Sec. 809.13, Wis. Stats., incorporating Sec. 803.09(2), Wis. Stats.

An amicus, however, does have some interest in a controversy (and often a specific position on an appealed issue). Whether that interest is sufficient to allow the filing of an amicus brief is up to the appellate court. That court, for example, may itself request a brief from a particular individual or group, if the court believes such would aid its analysis and decision making.

Absent this, the proposed amicus must file a motion under Sec. 809.19(7), Wis. Stats., identifying the movant’s interest and the reasons why a brief by the movant is “desirable.” The motion must be filed within 14 days after the respondent’s brief is filed; or, where a petition for review or original action in the Supreme Court is involved, within the time allotted for a response to the petition. In the latter case, a proposed brief must accompany the motion. Sec. 809.19(7)(b), (c), Wis. Stats.

According to the Supreme Court’s internal operating procedures, the assigned court commissioner may grant such a motion, if the movant appears to have specialized knowledge or experience with an issue which would make a brief by the movant “of significant value.” If the commissioner is unsure or believes the motion should be denied, the motion is brought to the Court. Wisconsin Supreme Court Internal Operating Procedures, II(B)(6)(c).

For an extensive discussion of amicus brief drafting, see Nettesheim and Ryan, Friend of the Court Briefs: What the Curiae Wants in an Amicus, 80 Wisconsin Lawyer, No. 5, p. 10 (May, 2007). See also Heffernan, Appellate Practice and Procedure in Wisconsin, Sec. 11.27 (State Bar 2014).

These sources observe that amicus briefs frequently come from entities presenting narrow arguments or asserting specific policies in cases which are complex or, if in the Supreme Court, of potentially far-reaching impact. As such, amicus briefs should be especially clear, precise and targeted. Because amicus briefs are often allowed precisely because they can provide perspectives unavailable to formal parties, they should not rehash the parties’ briefs.

An amicus, to be sure, leans toward one or the other appellate party. As such, it can provide great strategic, research and analytical help to that party. It cannot, however, be a de facto party on its own.

The court’s sua sponte request for an amicus brief or its granting of a Sec. 809.19(7), Wis. Stats. motion, gives an amicus the right to timely file a brief. (See Sec. 809.19(7)(c), Wis. Stats. as to briefing deadlines, and Sec. 809.19, Wis. Stats. for other briefing requirements). It alone does not give the amicus to do anything else in the appeal. See, however, Supreme Court Operating Procedures provision for party’s ceding of part of oral argument time to amicus, II(D)(a), (b).

The amicus, after all, remains a non-party. Although a potentially influential one.

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