Posted by Eugene Volokh:
Amicus Briefs -- The Virtue of Brevity, and the Vice of Duplication:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248277083
More on amicus briefs, from Mayer Brown's [1]Federal Appellate
Practice treatise (some paragraph breaks added):
Courts have heavy caseloads, and judges and law clerks are
therefore busy. For that reason, they tend to appreciate short
briefs -- or, more precisely, briefs that say no more than
necessary for the court to decide the case intelligently. They also
tend to pay more attention to short briefs. As Justice Scalia put
it in his book on effective advocacy: �The power of brevity is not
to be underestimated. A recent study confirms what we all know from
our own experience: people tend not to start reading what they
cannot readily finish.� Accordingly,
a brief that is verbose and repetitious will only be skimmed; a
brief that is terse and to the point will likely be read with full
attention. So a long and flabby brief, far from getting a judge to
spend more time with your case, will probably have just the
opposite effect.
That is particularly true of amicus briefs. In Justice Scalia�s
words, the �injunction of brevity has special force here, since not
even the demands of duty drive judges to read amicus briefs that
are bloated.� That view is shared by the justices� law clerks. On
the basis of interviews with former clerks, the author of a study
on amicus briefs in the Supreme Court concluded that �[o]ne of the
foremost attributes common to the ideal amicus brief is brevity.�
At least as a general rule, the same principle applies to amicus
briefs in the courts of appeals. For two main reasons, an effective
merits-stage amicus brief rarely requires every one of the 7,000
words authorized by the rules, and the author should try hard to
resist the notion that the brief should be as long as the rules
permit. Judges are aware that appellate briefs are like gas,
expanding in volume to fill their container. Even though the rules
permit a 7,000-word container, judges recognize and resent gaseous
briefs.
First, apart from tables and certificates, an amicus brief need
only include a statement of interest and an argument; it need not
include a statement of the case or a statement of facts.
([2]Show more about statements of facts in amicus briefs.)
That is what the rules say. As a matter of practice, however, an
amicus brief not only need not include a statement of the case or of
the facts, it ordinarily should not include either type of statement.
An amicus should assume that judges and law clerks do not wish to read
procedural or factual -- or any other -- information that has been set
forth in the party�s brief and that instead they wish to get to the
main point of the amicus brief as quickly as possible. Unnecessary
preliminaries create a risk that the reader will lose interest in the
brief and will -- at most -- merely skim the brief rather than
studying it carefully.
Of course, there may be cases in which the facts are critical and the
amicus concludes that they have not been effectively presented in the
party�s brief. In that circumstance, the amicus should include a
statement of the facts of the case, but only a short one focusing on
the most salient facts that underpin the arguments that the amicus
will be making. If you draft a statement of facts for an amicus brief,
go back after you complete the argument section to see whether you can
excise some facts as unnecessary to the court�s appreciating your
points. As in any brief, factual propositions should be supported by
citations to the opinion under review and the record, so that the
reader is left with no doubt as to their accuracy. The author of the
brief must also be meticulous in ensuring that the citations actually
support the proposition; if they do not, the amicus risks losing
credibility with the court.
([3]Hide.)
Second, as to the argument, while it may be understandable for a
party to believe that it must err on the side of saying too much,
so as not to omit anything that might conceivably persuade the
court to rule in its favor, there is no reason for an amicus to
adopt that approach. On the contrary, if an amicus feels that it
must err in one direction, it should err on the side of saying too
little.
An amicus brief typically has a single, discrete objective. If that
objective can be achieved in relatively few pages, then, as the
survey of law clerks concluded, �it is counterproductive to
obfuscate the important information the amicus seeks to convey by
submitting additional pages.� It is also counterproductive to risk
irking the judges who will decide the case by submitting additional
pages -- to say nothing of the risk that the judges will only skim
the brief or not read it at all. According to Justice Scalia, the
author of an amicus brief should �[m]ake the one or two points
(preferably one) that [he or she] think[s] will contribute
something important and new -- and close.�
Brevity, of course, is merely an ideal toward which the amicus
should strive; it is not an inexorable requirement. In particular,
�the goal of brevity should not override the more important goal of
helpfulness.� There will be cases in which the objective of the
amicus cannot be achieved in a few pages -- cases, for example, in
which there is simply a very large volume of important information
to be conveyed to the court. There will also be cases in which the
main justification for the amicus filing is that the party�s brief
is inadequate. In that circumstance, an amicus may well require all
of the words it is allowed -- or at least nearly all.
Whatever its length, an amicus brief should not merely repeat what
the party and other amici say in their briefs. The need to avoid
�me too� briefs is one of the most common admonitions to authors of
amicus briefs -- and with good reason. If an amicus brief simply
repeats what another brief says, the court will give it little
weight. It may not even be read, once an even cursory scan reveals
the duplication, as where the amicus brief tracks the organization
and headings in the party�s brief. The court may go so far as to
deny leave to file, if leave to file the brief is required.
Moreover, apparent duplication may lull the judges (and their law
clerks) into giving the amicus brief such short shrift that they
miss some unique gem of distinction or insight concealed within the
morass. Supreme Court law clerks have indicated, unsurprisingly,
that duplication is �the fatal flaw of an amicus brief.� If an
amicus does not have anything different to say, it should either
stay out of the case or consider filing a consolidated brief with
one or more other amici.
Part of the art of drafting an amicus brief, therefore, is not only
to have something distinctive to say but also to make it apparent
that there is something distinctive about the brief. This can be
done in a very brief Introduction that explains what the amicus
brief contains or addresses what is not in the party�s brief. In
addition, section headings should not mimic those of the party�s
briefs. In sum, just as it is often said that not only must justice
be done, justice must appear to be done, so too the amicus brief
not only should be different from the party�s brief but it also
should appear to be different.
References
1.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
2. file://localhost/var/www/powerblogs/volokh/posts/1248277083.html
3. file://localhost/var/www/powerblogs/volokh/posts/1248277083.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
