When an appeal involves legal issues that are novel or of statewide importance, appellate counsel should consider soliciting amicus curiae ("friend of the court") participation in support of their client’s position. This month, we discuss the elements of a motion for leave to file an amicus brief in the New York Court of Appeals and the attributes of a well-crafted amicus brief.
The first step is to promptly identify and recruit potential amici. For corporate litigants, in-house counsel can be a valuable resource for identifying potential amici and assisting appellate counsel in soliciting amicus participation. Advocacy groups and industry trade groups are frequent amicus participants. These organizations often have committees that search for amicus opportunities and evaluate requests for amicus participation.
The Court of Appeals website contains a link to weekly "New Case Filings" that lists recently filed appeals by case title, jurisdictional predicate, subject matter and key issues. Although some of these filed appeals may never reach a decision on the merits for various reasons such as dismissal on motion or stipulated withdrawal by the parties, this resource may suggest motions for amicus participation by those interested in the subject matter of these newly-filed appeals.
Motions for Leave To File an Amicus Brief
In Court of Appeals practice, "Any nonparty other than the Attorney General seeking to file an amicus brief on an appeal, certified question or motion for leave to appeal must obtain permission by motion" (see 22 N.Y.C.R.R. §500.23 (emphasis added)). Rule 500.23 provides comprehensive procedural rules and substantive criteria for amicus motions.
Incidentally, the Uniform Practice Rules of the Appellate Division similarly require motions for leave to file an amicus brief (see 22 N.Y.C.R.R. §1250.4[f]), but do not provide specific guidance for such motions except to state that "the motion shall briefly set forth the issues to be briefed and the movant’s interest in the issues." Court of Appeals Rule 500.23 is therefore instructive for amicus motions in the Appellate Division, especially with respect to the criteria for obtaining amicus relief.
In Court of Appeals practice, a motion for leave to file amicus briefs has three basic elements. First, after identifying the preserved issues the amicus wants to brief, the motion papers must "include a statement of the identity of movant and movant’s interest in the matter" (Rule 500.23[a][ii]). If the amicus is an organization, then the statement of interest should include a detailed description of its purpose, membership, activities and subject matter expertise. If the organization has previously filed amicus briefs in other cases this should be mentioned. The motion should also explain the motivation of the amicus for wanting to participate in the appeal, including an explanation of how the outcome of the appeal might impact its members.
Second, the motion must "include a statement indicating whether: (a) a party’s counsel contributed content to the brief or participated in the preparation of the brief in any other manner; (b) a party or a party’s counsel contributed money that was intended to fund preparation or submission of the brief; and (c) a person or entity, other than movant or movant’s counsel, contributed money that was intended to fund preparation or submission of the brief and, if so, identifying each such person or entity" (Rule 500.23[a][iii]). The motion should state explicitly that no such contributions were made if this is in fact true.
This disclosure rule serves several purposes. It prevents a party’s counsel from attempting to evade the page and word limitations for briefs by drafting the amicus brief, assists the court in assessing the trustworthiness and interest of the amici, avoids the ethical conflict created when a party funds the drafting of an amicus brief in support of its position, and reinforces the corporate disclosure requirement in Rule 500.1(f).
Third, the motion papers must "demonstrate that the parties are not capable of a full and adequate presentation and that movant could remedy this deficiency; movant could identify law or arguments that might otherwise escape the court’s consideration; or the proposed amicus curiae brief otherwise would be of assistance to the court" (Rule 500.23[a][iii]).
For example, an amicus brief can be used to buttress a lesser quality brief of a party by providing a more thorough legal analysis (though seeking leave on this ground naturally requires some finesse). An amicus brief can be used to apprise the court of the far-reaching legal, social or economic implications of a decision or to provide the court with a more comprehensive legal framework for a decision, such as a nationwide survey of the law in a particular area. Finally, an amicus brief can assist the court in cases involving highly specialized fields such as securities law or products liability law where the amicus possesses greater expertise than the parties. Whatever the reason, the goal is to convince the court that the amicus brief will assist the court in reaching its decision.
Perhaps the best evidence of the appropriateness of amicus relief from the court’s standpoint is the proposed amicus brief itself, which must be filed with the motion (Rule 500.23[a][i]). This requirement assists the court in assessing the relevance of the brief’s content and its trustworthiness. It also forces the amicus to assess whether the issues presented are sufficiently important to warrant the cost and effort of preparing a proposed brief with no assurance that the court will accept it. Amicus briefs must conform to the word and page limitations and other technical requirements for briefs generally (see, e.g., Rule 500.23[a][i]).
The timing of a motion for amicus relief is very important. In "normal course" appeals, the motion must be noticed for a return date no later than the court session preceding the session in which argument or submission of the appeal or certified question is scheduled (Rule 500.23[a][iii]). In appeals selected for review by the alternative procedure, the motion must be noticed for a return date no later than the filing date set for the respondent’s submission on the appeal (Rule 500.23[a]). Information on the calendar status of appeals, court session dates and appropriate return dates for amicus motions is available from the clerk’s office and the court’s website. Counsel should also consult the rules governing the service requirements and format of motions generally (see Rule 500.21).
These timing rules afford the adverse party an opportunity to respond if so advised. ("Briefs in response to an amicus curiae brief are not required but may be served and filed by a party whose position is adverse to that of the amicus curiae.") (Rule 500.12[f]). Failure to move for amicus relief in a timely manner will result in dismissal of the motion. See, e.g., In re Simon, 28 N.Y.3d 954 (2016).
A party served with a motion for amicus relief may file opposition thereto (Rule 500.23[a]). Absent a compelling reason to oppose the motion, adverse parties often consent to such relief as long as the proposed amicus has a legitimate interest in the case. According to the 2019 Annual Report of the Clerk of the Court of Appeals (the last year for which statistics are available), the court decided 79 motions for amicus curiae relief in 2019. Of those, 75 (95%) were granted. This suggests that it is probably wiser for an adverse party to seek amicus support for its own position than to oppose the motion.
Amicus Relief on Motions for Permission To Appeal
An amicus may also seek to participate in a party’s motion for permission to appeal to the Court of Appeals where the proposed appellant does not have an appeal as of right. Amicus support for a party’s motion for permission to appeal can be very effective in showing the court that the case presents important issues beyond the interests of the immediate parties, which is a principal ground for granting permission to appeal (see Rule 500.22[b]). The motion for amicus relief in this context, which must be accompanied by the proposed amicus brief, "shall be noticed for a return date as soon as practicable after the return date of the motion for permission to appeal to which it relates" (Rule 500.23[a]). Again, this affords the adverse party an opportunity to respond if so advised.
This procedure creates a potential pitfall for the unwary. Specifically, the granting of a motion to appear as an amicus on a motion for permission to appeal does not automatically authorize the movant to appear as an amicus on the subsequent appeal. A new motion for amicus curiae relief on the appeal must be brought pursuant to subsection (a)(1) or (2) of Rule 500.23.
Attributes of an Effective Amicus Brief
As noted, amicus curiae means "friend of the court." Friends try to help, not burden, each other. A persuasive amicus brief can be an effective complement to a party’s brief and can assist the court in deciding issues that have potential ramifications beyond the present case. Conversely, while coordination of arguments is of course desirable to present a united front between amicus counsel and counsel for the party whose position the amicus supports, an amicus brief that simply echoes a party’s arguments (the "me too" brief) or functions as a blatant lobbying effort to achieve a particular outcome only burdens the court, and, even if accepted for filing, will probably be ignored. Some attributes of effective amicus briefs are discussed below.
Amicus briefs can be used to augment a party’s analysis of a worthwhile legal issue where page or word limitations preclude an in-depth discussion by the party. For example, in a matter involving statutory interpretation, an amicus brief may add background information about the legislative history or implementation of a specific statute or statutory framework. An amicus brief can also demonstrate how other jurisdictions have resolved a particular legal issue or how a proposed new rule or cause of action coincides with the majority view in other states. Both of these examples involve supplementation, not duplication, of a party’s brief.
Another core mission of an amicus brief is to make policy arguments that explain how adopting a new rule, recognizing a new cause of action or rendering a particular decision will affect non-parties, including other litigants and society in general. Counsel for the parties, whose main concern usually is in obtaining a desired result for their client, may not adequately focus on such policy considerations in their briefs. Thus, an effective amicus brief may persuade the court to limit the scope of its ruling to the specific facts of the case before it to avoid unintended consequences that would result from a broader ruling.
Amicus briefs can also serve to highlight the practical implications of a decision in areas involving technical or scientific knowledge, which explains why such briefs are regularly filed in products liability litigation. For example, an automotive trade association amicus may be in a better position than the parties to inform the court about the feasibility of a proposed product redesign or warning.
There are limits, however, to what issues and evidence can be presented in an amicus brief. First and foremost, an amicus "shall not present issues not raised before the courts below" (Rule 500.23[a]). This limitation accords with the general principle that the Court of Appeals only possesses jurisdiction to review properly preserved issues. Similarly, an amicus is constrained by the record created by the parties and therefore may not introduce facts or other evidence outside the record. Despite this limitation the court usually will consider reliable extra-record material that will promote a more fully informed decision, especially on public policy matters. Such materials may include matters of public record (e.g., legislative history) or statistics, peer-reviewed scientific studies, academic research or social science data. These materials must be from credible and verifiable sources.
A well-crafted amicus brief truly assists the court in deciding novel or important issues by providing the unique perspective of the amicus and exploring the potential consequences of a decision on non-parties and society in general. This kind of amicus brief is the one most likely to influence appellate judges.
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.