Last month Bexis filed his 134th, and probably last, amicus brief in the Pennsylvania Superior Court in a non-drug/device product liability case involving firearms. Now edging into semi-retirement, Bexis is no longer in the business of drafting documents with footnotes. Bexis final won/loss total is:
Wins – 65 Losses – 38 Other – 29 Pending 2
Wins Reversed On Further Appeal – 2 Losses Reversed On Further Appeal – 4
Unpublished Wins – 11 Unpublished Losses – 10
Final, Published Wins – 52 Final, Published Losses – 24
Anyone interested can see the complete list of Bexis’ 134 amicus briefs, dating back to 1992, with parties represented and issues briefed, here.
Here are some principles that Bexis has learned in over thirty years of writing and filing amicus briefs in significant pieces of litigation:
Number one: Make sure to say something that is likely to contribute materially to winning the case. Too many amicus briefs are filed by organizations and their counsel that do little more than wave the flag. The presence of “me too” amicus briefs only devalues all amicus briefs, so would-be “me too” amici should simply sign onto amicus briefs written by someone else rather than file separately.
Number two: Don’t expect to make any money directly from filing amicus briefs. Writing an impactful amicus brief is often expensive, so amicus counsel should enter into their representations with their eyes open – realization rates for meaningful amicus briefs are likely to be very low. Bexis rarely topped 25% for his amicus filings, that is, when he was paid at all. Amicus briefs are loss leaders, with their value to their authors and their firms measured in gratitude from supporting industries – such as drug/device manufacturers – as a whole, and whatever publicity comes with helping win important cases.
Number three: Act quickly, particularly if supporting the appellant. Briefing schedules are short and, unless aided by the party they support, amici are very unlikely to obtain any extensions. A second reason to act quickly is that early circulation of a persuasive draft amicus brief is the best way for an amicus to influence the arguments that the party it is supporting will make. In amicus work, plagiarism is the ultimate form of flattery. Amici will never be as influential as parties, so if a supported party wants to lift something that an amicus drafted, by all means the amicus brief writer should let that happen.
Number four: Make sure that your amicus’ arguments are appropriate for the amicus organization. If the amicus party is a nationwide organization, it’s brief should offer a nationwide perspective on the issue(s) being briefed. If the amicus party is a state or local organization, that party’s brief should select and focus on an appropriate state or local issue. In any event, most state and local amicus parties, at least on the defense side, are not in the financial condition to undertake extensive research on their own, so see item 3.
Number five: The amicus brief writer must thoroughly research whatever legal issues are the subject of the filing. Amicus briefs are important mainly because they focus on a particular issue in more depth than the party being supported can give it in this era of strictly enforced word-counts. A comprehensive argument on the targeted issue is job one for any amicus. A prospective amicus writer needs to know from the outset exactly what issue(s) will be covered, and needs to coordinate with the supported party. Amici must also be careful not to bite off more than they can chew.
Number six: Amicus curiae research must be both thorough and professional. AI slop has negative value, so stay away from any use of AI in actually drafting an amicus brief. While AI can be useful in an early round of research, no AI program yet exists that is better than legal research – and writing – performed by an experienced and dedicated lawyer. AI does not understand the difference between recent and old cases. In amicus (and most other) legal argument, reliance only on a pre-2000 precedent often looks like a tacit admission that the proposition in question lacks recent support.
Number seven: Be a team player. The more important the case, the more amici it will attract. Experienced defense counsel in major litigation will have developed an amicus strategy for the appeal, in order to maximize perceived amicus impact and to reduce overlap and repetitive briefing. Amicus brief writers may be able to influence this strategy, particularly if they have experience in the area, but should in all but the most extreme situations, stay in their designated lanes.
Number eight: Write decisively. Use declarative sentences. Avoid passive voice. Do not say something is “clear” or “obvious” – show that with research and argument. Get rid of unnecessary words. “In order to” almost always can be shortened to “to.” Avoid starting sentences with “and” or “but.” Break up long sentences and paragraphs. Once a sentence has more than forty words, or a paragraph has more than five sentences, it is a candidate for splitting in two. Do not start successive sentences or successive paragraphs with the same word. The same holds true for using the same relatively distinctive word more than once in the same sentence.
Number nine: Block quotes are perfectly proper, but should be used sparingly and kept as short as possible. Remember that the longer block quotes are, the more likely the reader is to pass over them. The ellipsis is a friend, so long as it is used to shorten, rather than change, the meaning of, the text. Using an ellipsis to alter a quote’s meaning is asking for trouble. An introductory sentence to a block quote, with a few key words in quotes, is always good idea, and that idea gets better the longer the quote.
Number ten: Make sure the brief is, and looks, professional. This is a blogpost, so it’s fine to use contractions. Stay away from them in briefs. Likewise, avoid legal slang. Yes, the Blog helped coin the portmanteau “TwIqbal,” but it’s not appropriate for an amicus (or any other) brief. Use a standard font, such as Times New Roman, or Century Schoolbook, except on the cover, where putting the name of the court in Old English Text MT helps make the brief look as if it were professionally published. Ditto with full justification of the text of the brief. Ragged right side margins look like ragged teeth. Footnotes should be in the same size text as the rest of the brief and should also be fully justified. A justified text brief with unjustified footnotes just looks weird.
Number eleven: We’re not in law school anymore, so to hell with blue-book citation style. Keep abbreviations in case citations to a minimum – limit them to “Co.,” Inc.,” “Assn,” and terms of that ilk. Do not abbreviate directions. Do not abbreviate anything that creates uncertainty, such as “Com.” or “Con.” or “Elec.” The only exception that comes to mind is the names of law reviews. Also, the most worthless word in any citation is “Ct.” in the closing parenthetical. Of course, it’s a court; otherwise the brief would not be citing it. String citations are OK if, and only if: (1) every citation contains a jump citation to the relevant page of the opinion, and (2) every citation includes a parenthetical describing or quoting the relevant holding. In briefs that are presenting nationwide research, it is a good option to replace long string citations with state-specific bullet points.
Number twelve: Look like a local, particularly in state court. Respect local citation forms, such as only using state reporters in New Jersey and following California’s placement of citation parentheticals before the actual citation. Some jurisdictions require docket numbers for Westlaw/Lexis citations. If you are representing an amicus in an unfamiliar jurisdiction, it is always helpful – and frequently required – to have local counsel for advice on peculiar court rules or customary practices that affect how an amicus brief is written.
Number Thirteen: A professional’s proof-reading is essential, and should not be left to secretaries, and never, ever to computers. Read through the brief aloud before finalizing it. Orally stumbling over words in the text is a dead giveaway that, even if grammatical, the text of the brief is not sufficiently clear. A professional should be responsible for the final review of the table of authorities, and should do so manually, going page by page and checking off every citation. Computers can only do so much; unusual citations will be missed. Computers often treat numeric typos in citations as if they involve a new case. Bexis’ last brief included a 50-state collection of standard jury instructions. The computer omitted every one of them.
Number Fourteen: Finally, be electronically literate. Every part of every filing should be word searchable, since in the computer age text searches have reduced the importance of the table of authorities. If the amicus brief contains Internet links, make sure that they all work. Efiling has improved, but remains glitchy in many jurisdictions. Therefore, waiting until the last minute to file your brief is asking for trouble.