Seventh Circuit Sets Guardrails for Amicus Briefs

Federal Rule of Appellate Course of action 29 governs the filing of briefs amicus curiae. That rule permits the United States, a federal officer or company, or a state to file an amicus quick. Any other social gathering may file an amicus transient only with the consent of all functions to the enchantment, or with depart of court docket. A movement for leave to file will have to establish the curiosity of the movant and condition why the submitting of the amicus brief is desirable. It must also disclose no matter if the party’s counsel authored the transient in full or in element or funded preparing the temporary. Rule 29 does not outline the conditions in which a court will grant go away to file an amicus temporary. Seventh Circuit Rule 29 likewise, does not give that steerage.

In Prairie Rivers Network v. Dynegy Midwest Technology, 976 F.3d 761 (7th Cir. 2020) (Scudder, J., in chambers), the Seventh Circuit, by Judge Michael Scudder, explained the circumstances in which it will acknowledge an amicus short. The court docket defined an amicus brief is suitable when it provides value to the Court’s evaluation of the challenges on attractiveness. The court recognized an amicus is very likely an advocate, not a “neutral data broker.” Nevertheless, an amicus intrigued in the outcome of the scenario can add to the court’s consideration of the enchantment. The court determined the adhering to eight ways in which an amicus short could aid the courtroom:

  • Providing a diverse analytical approach to the legal concerns prior to the court docket
  • Highlighting factual, historical, or authorized nuance glossed above by the get-togethers
  • Describing the broader regulatory or industrial context in which a concern comes to the courtroom
  • Giving sensible views on the consequences of probable outcomes
  • Relaying sights on legal issues by utilizing the instruments of social science
  • Supplying empirical information informing one particular or yet another query implicated by an charm
  • Conveying instruction on very technical, scientific, or specialized topics over and above the ken of most generalist federal judges
  • Determining how other jurisdictions—cities, states, or even foreign countries—have approached one particular or an additional facet of a authorized problem or regulatory problem.

In performing so, the amicus transient ought to be “additive,” giving anything “different, new, and significant.” An efficient amicus brief can be small. The court emphasised that “shorter is typically better,” when acknowledging that “it is extra tough to publish a short, efficient temporary than a extended, belabored short.” In Prairie Rivers Network, the court discovered the three proposed amicus briefs fulfilled the court’s typical. When just about every quick contained some unneeded repetition of the party’s arguments, every short supplied special perspectives on the concern before the court docket. The courtroom granted leave to file because “members of the courtroom might find any or all of these additions handy to selecting this attraction.”

The court’s advice revisits its prior statements in Voices for Choices v. Illinois Bell Telephone, 339 F.3d 542 (7th Cir. 2003) (Posner, J., in chambers).  In Voices for Choices, the court docket, by Choose Richard Posner, denied motions to leave to file amicus curiae briefs submitted by a team of Illinois legislative leaders and by a union symbolizing personnel in the telecommunications market. The view mentioned that condition legislative leaders may perhaps have relevant sights about the validity of a state statute. Furthermore, a union representing staff affected by the regulatory routine applicable to its members’ employer may well have an interest in the end result of litigation. Irrespective of the “status of the movants,” the courtroom denied the motions for depart to file amicus briefs. These pursuits were irrelevant to the endeavor of the court docket. Decide Posner spelled out that an amicus brief is right when it “will support the judges by presenting tips, arguments, theories, insights, facts, or details that are not to be discovered in the parties’ briefs.” The viewpoints of the amici in Voices for Options did not vary from the viewpoints of the get-togethers in the circumstance. The parties experienced briefed the difficulty “more than sufficiently,” creating the amicus briefs needless. See generally ”Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit,” XXII.B “Amicus Briefs” (2020 Ed.).

Although the steerage in Prairie Rivers Community presents a roadmap for a beneficial amicus transient, the purpose of an amicus stays minimal. Rule 29 makes obvious that amici may well not ordinarily file a reply temporary or take part in oral argument. Rule 29 does not specify irrespective of whether amici could file letters highlighting supplemental authority less than Rule 28(j), although some courts have permitted amici to do so. Moreover, amici need to satisfy the agenda established forth in Rule 29. Motions to prolong briefing schedules to accommodate the submitting of an amicus temporary, even though permitted by the rule, are not often granted.

Like other courts, the Seventh Circuit stays wary of amicus briefs and counsel should really not think a motion for go away to file an amicus transient will be granted if the get-togethers do not consent to the filing. The court scrutinizes amicus briefs, and the explosion of groups and attorneys needing to submit amicus briefs does not indicate that the court will routinely take them. Nevertheless, awareness to the court’s steering in Prairie Rivers Community might lead to the preparing of an correct amicus temporary that the court will welcome.

Michael T. Brody is a partner at Jenner & Block. Brody serves as co-chair of the firm’s appellate and Supreme Court docket follow and co-chair of its course motion exercise.