Amicus Briefs: What Have They Done for Courts Lately?
“Amicus curiae” means “friend of the court,” but how friendly have amicus briefs been to courts lately? Have they been helpful to courts in the decision-making process? This article discusses how often Florida appellate courts cite to or rely on amicus briefs in their opinions and also highlights effective amicus brief writing strategies.
The Florida Supreme Court
From 2007 to 2011, the Florida Supreme Court mentioned amicus briefs in 14 majority opinions. Additionally, one dissenting opinion1 and one concurring opinion2 cited an amicus brief. How many amicus briefs are actually filed in the Florida Supreme Court? In 2010, 133 appeals filed in the Florida Supreme Court included at least one merits brief.3 Of these 133 appeals taken on the merits, amicus briefs were accepted in at least 23 cases.4 Thus, approximately 17 percent of 2010 cases taken on the merits included at least one amicus brief.5 Interestingly, in a similar survey concerning Florida Supreme Court cases 10 years earlier in 2001, 228 matters involved merits briefing, and amicus briefs were filed in 43 cases, a rate of almost 19 percent.6 Thus, the number of amicus briefs filed has not changed significantly over the past decade.
The District Courts of Appeal
The district courts of appeal mention amicus briefs in their opinions as well. Between 2007 and 2011, the Third District Court of Appeal and Fourth District Court of Appeal referred to amicus briefs most frequently — seven times each. The Third District7 agreed with amici in three cases: In re Adoption of X.X.G. and N.R.G., 45 So. 3d 79 (Fla. 3d DCA 2010);8 Skylake Insurance Agency, Inc. v. NMB Plaza, LLC, 23 So. 3d 175, 178 (Fla. 3d DCA 2009); and Sims v. New Falls Corp., 37 So. 3d 358, 361-62 (Fla. 3d DCA 2009). In Weingrad v. Miles, 29 So. 3d 406, 410-11 (Fla. 3d DCA 2010), the Third District cited and rejected an argument in an amicus brief.9 Additionally, the Third District mentioned that amicus briefs were filed in three other cases.10
Fourth District opinions agreed with amici in three cases11 and disagreed with amici in three others.12 Also, the Fourth District noted in JPG Enterprises, Inc. v. McLellan, 31 So. 3d 821, 823 nn.1-2 (Fla. 4th DCA 2010), that it requested and received amicus briefs from the Real Property Probate and Trust Law Section of The Florida Bar and The Florida Bar Consumer Protection Law Committee, expressed gratitude for their assistance, and summarized their arguments along with the parties’ arguments.13 The First District Court of Appeal has cited amicus briefs four times from 2007 through 2011, but the court disagreed with the amicus argument each time.14 The Fifth District agreed with amici twice and disagreed once for a total of three references to amici.15 The Second District Court of Appeal cited amici three times, once to summarize key facts16 and twice to disagree with amici.17 To sum up, the district courts of appeal referenced amici in 23 opinions between 2007 and 2011. Based on the number of references noted, Florida’s appellate courts do cite amicus briefs they find helpful.
What Makes an Amicus Brief Helpful?
The key to a helpful amicus brief is just that — it must help a court in reaching its decision. In Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 544 (7th Cir. 2003), Judge Posner expressed his views on amicus briefs:
[J]udges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties’ briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process.18
This may be a valid concern in some instances. But Florida courts have occasionally noted the assistance provided by amicus briefs (“As one amicus curiae in this case described the process. . . ”19 ) or expressed gratitude for their help (“We thank the Florida Society of Health-System Pharmacists and Florida Pharmacy Association for the amici briefs filed herein.”20 ). On the one hand, an amicus should not reargue the arguments made by the parties to a case.21 On the other hand, an amicus cannot raise issues not raised by the parties. An amicus and its attorneys do not want to be told that “this issue is not properly before this [c]ourt” when a court addresses their arguments.22 What is a well-meaning amicus to do?
Be the Right Type of Party in the Right Type of Case
Amicus briefs can be submitted to assist a court in cases evoking great public interest, to help resolve complex issues, or to ensure that a particular argument is made to a court while it is considering the case.23 These arguments should be presented by the right type of amicus, which will depend on the nature of the case. In the best amicus briefs, the interests of the amici are slightly different from those of the parties to the case, or the amici seek to introduce variations of the parties’ arguments or to raise policy concerns that may influence the court’s decision. A good amicus brief would make broad arguments concerning legitimate policy implications that would appear too self-serving if made by a party to the case.24 Groups with specialized knowledge like sections of The Florida Bar can file helpful briefs.25 Probably the most helpful type of amicus brief discusses practical effects of the court’s decision, possibly in ways the parties cannot or will not argue. It is important to help the court see the “big picture” and practical effects of its decision on the citizens at large; it is not helpful for an amicus simply to express its opinion on the parties’ arguments.26 Furthermore, it is not a good idea simply to file a “me too” brief just for the sake of showing support for a certain party to a case. As noted in Ciba-Geigy Limited, BASF A.G. v. Fish Peddler, Inc., 683 So. 2d 522, 523 (Fla. 4th DCA 1996), “Since the parties are limited as to the number and length of briefs, amicus briefs should not be used to simply give one side more exposure than the rules contemplate.”
Fed. R. App. P. 29, which concerns amicus curiae briefs, was amended in 2010 to add disclosure requirements concerning authorship and funding. In particular, subsection (c)(5) requires amicus briefs to disclose whether “a party’s counsel authored the brief in whole or in part,” whether “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief,” and whether “a person — other than the amicus curiae, its members, or its counsel — contributed money that was intended to fund preparing or submitting the brief and, if so, [the identities of] such person.”27 Basically, a party to the appeal cannot author or contribute funds to pay for an amicus brief unless the party is prepared to disclose that fact. However, “coordination between the amicus and the party whose position the amicus supports is desirable, to the extent that it helps to avoid duplicative arguments.. . . In any event, mere coordination — in the sense of sharing drafts of briefs — need not be disclosed under subdivision (c)(5).”28
Make the Right Arguments
The amicus brief “should get right to the additional information the amicus believes will assist the court.”29 Arguments can include background or arguments gained from a particular expertise, such as that of an industry or public interest group. Probably most importantly, an amicus can also explain the impact a certain holding would have on an industry or a certain population of citizens.30 Almost 50 years after it was decided, the seminal case of Keating v. State, 157 So. 2d 567, 569 (Fla. 1st DCA 1963), retains its influence on proper amicus arguments:
A significant distinction is apparent as between “issues” and “theories” in support of a particular issue. We agree with [the] position that amicus is not at liberty to inject new issues in a proceeding; however, amicus is not confined solely to arguing the parties’ theories in support of a particular issue. To so confine amicus would be to place him in a position of parroting “me too” which would result in his not being able to contribute anything to the court by his participation in the cause.
Thus, an amicus may add new arguments to an issue already in the appeal based on the amicus’ expertise or perspective, but the amicus cannot add a new issue to the appeal.
Follow the Rules
Fla. R. App. P. 9.370 governs the filing of amicus briefs and their content. Unless an amicus brief is invited by a court, an amicus must obtain the court’s permission before filing an amicus brief by filing a motion for leave to file amicus brief. The time for serving an amicus brief is tied to the time for serving the parties’ briefs in the appeal, so it is helpful to communicate with the party whom the brief is supporting to verify when that party is submitting its brief. A motion for leave to file an amicus brief must include: 1) the movant’s interest in the appeal; 2) the particular issue to be addressed in the brief; 3) how the movant amicus can assist the court in the case’s disposition; and 4) whether all parties consent to the filing of the amicus brief.31
The amicus brief must not exceed 20 pages and must comply with the content requirements in Rule 9.210(b) except that it “shall omit a statement of the case and facts.”32 The amicus brief “must include a concise statement of the identity of the amicus curiae and its interest in the case,” and the “cover must identify the party or parties supported.”33 A new amendment to Rule 9.370, effective January 1, 2012, states that an amicus must serve its brief no later than 10 days after the first brief, petition, or response of the party being supported is served, instead of the five days required previously.34
It is also important to note that pursuant to Rule 9.370(d), when a party has invoked the discretionary jurisdiction of the Florida Supreme Court, an amicus curiae has the option to file a notice with the court indicating its intent to seek leave to file an amicus brief on the merits. The notice must briefly explain why the case is of interest to the amicus, and the notice cannot exceed one page.
When Florida’s appellate courts find amicus briefs helpful, they recognize this and often cite them in opinions. To increase the effectiveness of an amicus brief, ensure that the client is a proper amicus that can provide special insight into an issue before the court instead of merely chiming in on an issue; then make arguments that enhance the parties’ arguments or focus on that particular expertise. Finally and importantly, follow the rules to ensure that the court will consider the amicus’ arguments.
1 Dufour v. State, 69 So. 3d 235, 258 (Fla. 2011) (Pariente, J., concurring in part and dissenting in part) (citing amicus brief of American Association on Intellectual and Developmental Disabilities).
2 State v. Whitby, 975 So. 2d 1124, 1130 (Fla. 2008) (Pariente, J. concurring) (citing amicus briefs of Florida Association for Women Lawyers, the Cuban American Bar Association, the National Association for the Advancement of Colored People, the American Civil Liberties Union, and the Florida Association of Criminal Defense Lawyers).
3 Appeals in which only jurisdictional briefs were filed and Florida Bar disciplinary proceedings were not considered.
4 In 2011, 113 appeals filed in the Florida Supreme Court included at least one merits brief. Of these 113 appeals, at least one amicus brief was filed in 10 cases. However, merits briefing may not be completed or even commenced in some 2011 cases, so this number will probably increase. See Supreme Court of Florida, Petitions, Briefs on the Merits, http://www.floridasupremecourt.org/clerk/briefs/2011.shtml (surveying briefs filed in appeals numbered SC11-1 through SC11-2586).
5 See Supreme Court of Florida, Petitions, Briefs on the Merits, http://www.floridasupremecourt.org/clerk/briefs/2010.shtml (surveying briefs filed in appeals numbered SC10-1 through SC10-2506).
6 S ylvia H. Walbolt and Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. 269, 283 (2003).
7 The Third District frequently thanks the amici who file briefs. See, e.g., In Re Adoption of X.X.G. & N.R.G., 45 So. 3d 79, 81 n.2 (Fla. 3d D.C.A. 2010) (“The court wishes to express its appreciation for the briefs of amicus curiae which have been submitted in this case.”).
8 In re Adoption of X.X.G. & N.R.G., 45 So. 3d at 85 n.8 (“As stated in the brief amicus curiae of the Family Law Section of The Florida Bar, ‘A parent’s homosexuality is not a basis to terminate his or her parental rights. It is not a basis to deny that parent residential responsibility for his or her child or time-sharing with that child.’”).
9 “[W]e specifically reject the reliance by…the amicus curiae…on cases rejecting retrospective application of a statute, where the statute in question contained no legislative language providing for the statute to apply retrospectively.”
10 McKesson Medication Mgmt., LLC v. Slavin, 75 So. 3d 308, 309 n.1 (Fla. 3d D.C.A. 2011) (“We thank the Florida Society of Health-System Pharmacists and Florida Pharmacy Association for the amici briefs filed herein.”); Reid v. Temple Judea, 994 So. 2d 1146, 1148 n.3 (Fla. 3d D.C.A. 2008) (“We asked the Real Property, Probate & Trust Section of The Florida Bar to file a brief as amicus addressing the question of a trustee’s standing to pursue a claim for reformation. We thank the section for taking the time to respond and to provide us with its input.”); Garcia v. Fla. Unemployment Appeals Comm’n, 979 So. 2d 1174, 1177 (Fla. 3d D.C.A. 2008) (“Amicus curiae, The Florida Workers Center, through attorneys at the nonprofit legal assistance group, Florida Legal Services, Inc., provided a supplemental brief supportive of Ms. Garcia’s position and detailing the obstacles faced by unrepresented low-wage workers with limited English proficiency.”).
11 D&T Properties, Inc. v. Marina Grande Assocs., Ltd., 985 So. 2d 43, 46 (Fla. 4th D.C.A. 2008) (“As the amicus brief [filed by Florida Latin Builders Association and Builders Association of South Florida] points out, ‘It is the very nature of future operating budget estimates that those estimates inevitably will have to be updated before the predicted expenses are actually incurred.’”); Donovan v. Broward County Bd. of Comm’rs, 974 So. 2d 458, 461 (Fla. 4th D.C.A. 2008) (quoting paragraph in amicus brief of National Employment Lawyers Association concerning “significant benefits of internal investigations to employees”); Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261, 268 (Fla. 4th D.C.A. 2007) (“As amici curiae [Publix Super Markets, Inc. and Food Marketing Institute] point out, such an area restraint does not apply to a real property covenant running with the land, which ‘is tied to specifically described real property, whether it be an entire subdivision, an adjacent lot, or a commercial development.’”).
12 Olen Props. Corp. v. Moss, 984 So. 2d 558, 561 (Fla. 4th D.C.A. 2008) (“In an excellent brief, amicus curiae counsel argues that section 83.595 should be construed in a way that its remedies are ‘available in addition to the common law remedies, which include an award of liquidated damages pursuant to’ a signed lease agreement. We reject this invitation to expand section 83.595 by judicial interpretation.”); Freeman v. Cohen, 969 So. 2d 1150, 1154 (Fla. 4th D.C.A. 2008) (summarizing arguments made by amicus the Florida Medical Association and two doctors and disagreeing with amicus); Zamora v. Fla. Atl. Univ. Bd. of Trustees, 969 So. 2d 1108, 1111 n.1 (Fla. 4th D.C.A. 2008) (disagreeing with amicus National Employment Lawyers Association’s argument concerning statutory construction).
13 In Home Devco/Tivoli Isles LLC v. Silver, 26 So. 3d 718 (Fla. 4th D.C.A. 2010), the Fourth District granted a motion to appear as amicus curiae for the purpose of filing a motion for rehearing filed by Toll Brothers, Inc., and the Florida Home Builders Association, granted their motions for rehearing, and vacated and substituted its prior opinion. Id. at 719.
14 Kortum v. Sink, 54 So. 3d 1012, 1018-19 (Fla. 1st D.C.A. 2010) (discussing and rejecting arguments made by amici Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and Florida Property and Casualty Association); Mercury Ins. Co. of Fla. v. Shands Teaching Hosp. and Clinics, Inc., 21 So. 3d 38, 39 (Fla. 1st D.C.A. 2009) (rejecting argument of amicus Florida Hospital Association); Bohannon v. Shands Teaching Hosp. & Clinics, Inc., 983 So. 2d 717 (Fla. 1st D.C.A. 2008) (rejecting parties’ and respective amici’s arguments); McCalister v. Sch. Bd. of Bay County, 971 So. 2d 1020, 1026 n.2 (Fla. 1st D.C.A. 2008) (“The Florida School Boards Association, Inc., in its amicus curiae brief, points out that increasing focus on the recently enacted school rating system requires school boards take a more active role in personnel decisions. While this may be the case, this is an argument for the [l]egislature, not this court.”).
15 Berrios v. Spine, 76 So. 3d 967, 971 (Fla. 5th D.C.A. 2011) (summarizing and agreeing with argument made by amicus Florida Justice Association); Tractor Supply Co. v. Kent, 966 So. 2d 978, 982 (Fla. 5th D.C.A. 2007) (citing “legitimate concern” raised by amicus Florida Retail Federation); Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608 (Fla. 5th D.C.A. 2007) (“We disagree with the parties’ and amici curiae’s assertion that our standard of review is whether the lower court abused its discretion.”).
16 City of Tampa v. Addison, 979 So. 2d 246, 249 n.2 (Fla. 2d D.C.A. 2007) (“These and other facts about the differences in the various ordinances [imposing occupational license taxes on attorneys] enacted by the members of the proposed defendant class members were reported to us in one of the amicus briefs filed in this case.”).
17 Foundation for the Developmentally Disabled, Inc. v. Step Step Early Childhood Educ. & Therapy Ctr., Inc., 29 So. 3d 1221, 1225 n.3 (Fla. 2d D.C.A. 2010) (“In its amicus brief, the State contends that Persan v. Life Concepts, Inc., 738 So. 2d 1008, 1009 (Fla. 5th D.C.A. 1999), was wrongly decided. However, it acknowledges that in the ten years following the decision in Persan, the legislature has made no changes to Florida law regarding constructive and resulting trusts.”); In the Interest of A.W.P., Jr., 10 So. 3d 134, 135 (Fla. 2d D.C.A. 2009) (disagreeing with co-custodian of child’s argument in amicus brief that father’s right to due process was not violated when order approving educational plans was entered without notice to father or opportunity to be heard).
18 Other judges have disagreed with Judge Posner’s view favoring restrictions on the filing of amicus briefs. In particular, now-Justice Alito’s opinion when he was on the Third Circuit Court of Appeals in Neonatology Associates, P.A. v. Commissioner of Internal Revenue, 293 F.3d 128 (3d Cir. 2002), warns that “[a] restrictive policy with respect to granting leave to file [amicus briefs] may  create at least the perception of viewpoint discrimination,” and states that “a restrictive practice regarding motions for leave to file [amicus briefs] seems to be an unpromising strategy for lightening a court’s work load.” Id. at 133.
19 Neumont v. State, 967 So. 2d 822, 830 (Fla. 2007).
20 McKesson, 75 So. 3d at 309 n.1.
21 For a thorough discussion concerning judges’ efforts to limit amicus briefs and an argument that the standard for sanctions pursuant to the Federal Rules of Civil Procedure should determine whether amicus briefs should be accepted by a court for filing, see Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315 (2008). Professor Garcia argues: “The current standard for most amicus briefs — whether the proposed brief provides duplicative material — is too vague and indeterminate to give enough guidance for amicus filers to know whether or not their filings are welcome.” Id. at 324.
22 Riechmann v. State, 966 So. 2d 298, 304 n.8 (Fla. 2007) (“The Federal Republic of Germany filed an amicus curiae brief alleging that the State of Florida did not follow proper international protocol in the form of Letters Rogatory when obtaining evidence in Germany used against Riechmann during his trial. Despite Germany’s amicus brief, which was filed nearly seventeen years after Riechmann’s murder conviction, Riechmann has not raised any issue on this appeal regarding the propriety of the searches in Germany. Furthermore, it is axiomatic that amici are not permitted to raise new issues.”) (citing Dade County v. Eastern Air Lines, Inc., 212 So. 2d 7, 8 (Fla. 1968); Michels v. Orange County Fire Rescue, 819 So. 2d 158, 159-60 (Fla. 1st D.C.A. 2002)).
23 Philip J. Padovano, Appellate Practice §16:14 (2011).
24 The Florida Bar, Florida Appellate Practice §20.13 (2010).
25 Id. at §20.11 (2010). Other helpful questions to consider include: Are the parties going to raise and focus on the correct issue? Are the parties going to settle the appeal before an opinion issues? Is another amicus curiae going to brief the same issue? Are the parties likely to brief the appeal well? Are the parties likely to seek extensions of their own briefing schedules, thereby extending the amicus briefing schedule, or is the briefing going to occur on a regular or expedited basis? Are the underlying facts in the case good or bad for the position that would be taken in an amicus brief? Are the parties confident about securing jurisdiction if jurisdiction is an issue?
26 Walbolt, 32 Stetson L. Rev. at 277-78 (summarizing interviews with Florida Supreme Court justices concerning the usefulness of amicus advocacy).
27 Fed. R. App. P. 29(c)(5) cmt. (2010) (“Person. . . includes artificial persons as well as natural persons.”).
29 Ciba-Geigy Limited, 683 So. 2d at 524. “Bad amicus briefs simply restate the issues and arguments in the brief of the party that the amicus curiae is supporting, which simply adds more paper and little substance to the appellate files and frustrates appellate adjudication.”
Florida Appellate Practice at §20.1.
30 Post-opinion filing of an amicus brief is not authorized by Rule 9.370, but it is authorized by Florida precedent. See, e.g., Home Devco/Tivoli Isles LLC v. Silver, 26 So. 3d at 718 (Fla. 4th D.C.A. 2010) (granting motion to appear as amicus curiae for purpose of filing motion for rehearing and granting motion for rehearing).
31 Rule 3.70(a).
32 Rule 9.370(b).
34 In re Amendments to Florida Rules of Appellate Procedure, 75 So. 3d 239 (Fla. 2011). The federal rules are different. An amicus must serve its brief “no later than seven days after the principal brief of the party being supported is filed.” Fed. R. App. P. 29(e).
Carrie Ann Wozniak is an attorney with Akerman Senterfitt in Orlando. She received her B.A. from the University of Michigan and her J.D. cum laude from Stetson University College of Law. She is a former Florida Supreme Court staff attorney to Justice Harry Lee Anstead. She is an active member of the Appellate Practice Section of The Florida Bar and serves on The Florida Bar Committee on Professionalism.
The author thanks Judge Gerald B. Cope, Jr., for his review and comment in the drafting of this article.
This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, Kristi Rothell, and Bretton Albrecht, assistant editors.