Amicus Brief Guidelines
CBA GUIDELINES FOR SUBMITTING AN AMICUS BRIEF
1. The Amicus Committee and Its Functions
Each year the president of the CBA shall appoint a committee ("committee") on Amicus Curiae Briefs of five (5) members who are expert in appellate procedures and learned in brief writing. Under authority delegated by the Executive Council of the Board of Governors, the committee will function as follows:
a) The committee will receive and review all applications requesting the CBA to file an amicus brief. The committee's review of each application shall be guided by the terms and conditions of this policy statement. The committee's recommendations regarding brief requests and regarding authors of the proposed brief shall be submitted in writing to the Executive Council for approval or disapproval. In its sole discretion, the Executive Council will determine if a particular brief request should go to the Board of Governors for final decision.
b) Should the Executive Council approve the application, the committee, on behalf of the CBA, will review the brief, suggest modifications if necessary, and determine whether (with any modifications suggested by the committee) it satisfies the CBA's standards. The committee should ensure that the brief is of high professional quality and a fair representation of the policy position of the CBA.
2. Review and Filing Process -- Authorization; Notice Requirements; Filing in Name of CBA or in Name of a Section, Committee or other CBA entity; Coordination by Executive Director
Authorization
The filing of an amicus curiae brief in the name of the CBA or in the name of a section or committee or other CBA entity must be authorized by the Executive Council of the CBA. The determination of CBA participation in a limited capacity shall be made by the Executive Council under the guidelines set forth on Page A-26 "3. Appropriate Cases." The Executive Council will act only after an application to file an amicus curiae brief has been submitted to the committee by a member, section or committee of the CBA, and after the committee has reviewed other CBA section and committee positions and has made its recommendations to the Executive Council.
Notice Requirements
Upon receipt of an application, the committee will provide copies of the application to each of the CBA sections and committees. The sections and committees shall review the application forthwith and transmit a position or comments to the committee for the committee's consideration.
Filing Name
An amicus brief may be filed in the name of the CBA and, under the circumstances listed on Page A-26, "3. Appropriate Cases," in the name of a section, committee or other CBA entity. Where the amicus brief is filed on behalf of the CBA, the CBA president appears as counsel of record using the CBA headquarters address. In those instances where a section, committee or other CBA entity is granted leave to file an amicus brief, the chair of the section, committee or other CBA entity shall appear as counsel of record using the CBA headquarters address. The names of the lawyers who write the brief will customarily be added, with their local addresses.
Coordination
Coordination of the review and filing processes has been assigned to the CBA's executive director, who may be consulted at any time regarding amicus curiae briefs. Processing the application notice requirements and submission to the Executive Council are the responsibility of the committee.
3. Appropriate Cases
It is the general policy of the CBA to file amicus curiae briefs sparingly and only in appropriate cases. Briefs will be authorized only at the appellate level except for extraordinary situations at the trial level and generally only in the highest court in which the issue is likely to be finally determined. The CBA should limit participation to cases in which certiorari has already been granted or jurisdiction noted, but the Executive Council may authorize filing a brief urging that certiorari be granted or that probable jurisdiction be noted if that seems advisable.
It is the policy of the Board of Governors to authorize an amicus brief only when the brief would constitute a significant contribution to the consideration of the issue or issues involved and only when the position sought to be advanced is (a) consistent with previously adopted policy of the CBA or (b) a matter of compelling public interest as determined by the committee and the Executive Council, or (c) of special significance to lawyers or the legal profession, or (d) a matter of limited scope such that a position by the CBA as a whole would be unnecessary or inappropriate and other sections or committees do not disagree with the position of the proposing section or committee or (e) of a nature such that participation by the CBA as amicus is not possible due to conflict between two or more sections and/or committees; however, the Executive Council may consider limited CBA participation if the court is likely to be more fully informed if the divergent positions of the interested sections or committees are presented to it.
If the brief supports a position which has not been previously adopted as a policy of the CBA, the Executive Council must adopt the position as CBA policy before authorizing the filing of the brief. In such a case, the burden is on the proponent of the brief to formulate the proposed position and to persuade the Executive Council of the urgency and importance of adopting it.
CBA briefs should not merely restate arguments advanced by participating parties. Factual issues are not to be addressed or argued. Where CBA policy is clear and already upon the public record, the entity or individual seeking authorization is free to cite and discuss CBA policy in the brief.
Most appellate court rules require that a motion to file an amicus brief state the nature of the applicant's interest and reasons why the filing of an amicus brief is desirable or will assist the appellate court. The motion, and if no motion is filed, the statement at the beginning of the brief, should accordingly explain that the CBA has a special interest in the case for stated reasons and that its interest in some respect differs from that of the party supported. A presentation of the consequences of deciding the case one way or another might be stated in a context different from that which would be found in any of the parties' briefs. Some matters may be particularly appropriate for the CBA to call to the Court's attention.
4. Contents of Application to the CBA Amicus Committee
An application may be in letter or memorandum form addressed to the executive director of the CBA at the CBA's headquarters. If it is complete, the application and any related material will be transmitted to the Amicus Committee for its prompt consideration. In exceptional circumstances where time constraints require expedited consideration, the president may call a special joint meeting of the Executive Council and the committee to consider the application.
The application shall contain the following:
a. The style or caption of the case, the identification of the last court to render a decision in the case and the court in which the brief is proposed to be filed. A copy of the decision or order appealed from, accompanying opinion and other relevant documents should be attached. The committee has found it helpful to be able to review copies of supporting and opposing briefs filed in the lower court.
b. A statement of the date by which the proposed amicus brief must be filed.
c. A full statement of the relevant facts of the controversy unless set forth in other materials provided by the applicant.
d. A statement whether the policy or principle of law to be supported has been adopted by the CBA and, if so, reference to and full quotation of the relevant resolution by the CBA or other authoritative action by the CBA. If the application seeks authority to file an amicus curiae brief in support of a position or principle of law which has not been adopted as a CBA policy, it must be accompanied by a concise statement of the policy position to be supported and a statement of reasons why it should be adopted by the Executive Council.
e. An explanation of the reasons why this controversy is an important one for CBA participation.
f. Where the applicant is an entity, a statement of the occasion and method of consideration of the matter by the applying entity, including a description of any dissenting views.
g. Disclosure of any personal or professional interest in the issues involved on the part of the applicant.
h. The names, if any, and their firm connection of those who would agree to write the brief on behalf of the CBA.
i. An outline of the argument to be set forth in the brief or, preferably, a draft of the brief to be filed.
j. A list of CBA sections and committees which would be interested in the subject matter.
5. Time of Application -- Early Action Important
Because of the importance of amicus curiae briefs to the perception of the CBA by the courts, the press, the public and CBA members, every effort should be expended to insure sufficient time for thorough consideration of an application and the brief by the Executive Council, other CBA entities and the committee. When time is short, consideration should be given to discussions and vote by telephone conference call rather than waiting for the next regularly scheduled council or committee meeting. Information regarding the time requirements for placing an application on the agenda of the Executive Council may be obtained from the executive director.
Applications should be submitted to the executive director and to the members of the committee as early as possible.
The rules of the court in which the brief is to be filed must be consulted and observed. Many courts require that amicus briefs be filed within the time allowed for the brief of the party being supported.
6. Consent by Parties
Most state courts require leave of court to file an amicus brief. The Amicus Committee will prepare the appropriate motion for filing by the CBA. In the federal appellate courts, this is unnecessary if all parties consent to the filing. If consent has been refused by a party, a motion for leave to file the amicus brief must be filed.
7. Notice to Others
Whenever an application is placed upon the agenda of the Executive Council the executive director shall send copies of the application, committee or section positions and related material to all CBA standing and special committees and sections.
8. Length
The CBA should file the most concise brief possible under the circumstances.
9. Joint Briefs
Generally the CBA will not join in amicus curiae briefs with other organizations or individuals.
10. Costs
The CBA will pay no legal fee for the preparation or review of amicus curiae briefs. The necessary costs of printing and filing an approved brief shall be borne by the CBA under a budget maintained by the CBA's executive director.
Revised 4/95
Adopted 4/85
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