The Briefs on the Merits - Bna

736 Supreme Court Practice, 9th Edition Ch. 13.14
<strong>The</strong> requirement of timeliness applies to the federal and state governments,
which otherwise may file amicus briefs without the consent of the
parties or of the Court. On several occasions the Court has denied the Solicitor
General’s motion for leave to file amicus briefs out of time. Once when
the Solicitor General, following oral argument, advised the Clerk that the
Government “was prepared to file a brief amicus within three weeks,” the
Court responded that “the Rules of this Court do not allow the filing of briefs
amicus after oral argument.” United Air Lines, Inc. v. McMann, 434 U.S. 192,
194 n.3 (1977).
<strong>The</strong> motion for leave to file should begin by describing the relief requested
and stating that consent to file has been requested of the other parties
and that an identified party, or parties, has refused. Rule 37.3(b) provides:
When a party to a case before the Court for oral argument has withheld consent,
a motion for leave to file an amicus curiae brief may be presented to the
Court. <strong>The</strong> motion, prepared as required by Rule 33.1 and as one document
with the brief sought to be filed, shall be submitted within the time allowed for
filing an amicus curiae brief, and shall indicate the party or parties who have
withheld consent and state the nature of the movant’s interest.
Before 1995, the rules stated that the motion should set forth “the nature
of applicant’s interest” and also “facts or questions of law that have not
been, or reasons for believing that they will not be, presented by the parties.”
Former Rule 37.4. Despite the elimination of this language, the motion should
demonstrate what the amicus brief will add to the briefs filed by the parties. 54
In preparing both the motion for leave to file and the amicus brief itself,
counsel should keep in mind the admonition contained in the introductory
subsection to Rule 37.1:
An amicus curiae brief that brings to the attention of the Court relevant matter
not already brought to its attention by the parties may be of considerable help
to the Court. An amicus curiae brief that does not serve this purpose burdens
the Court, and its filing is not favored.
<strong>The</strong> fact that the briefs for the party and the amicus must be filed within
a week of each other often makes it difficult for them to coordinate their
presentations to the Court. If, at the time the amicus brief is being prepared,
the amicus does not know what the party’s brief will say, the amicus can have
little assurance that it is presenting facts and arguments not presented by the
party being supported. As soon as an attorney ascertains that an amicus brief
will be filed, he or she should communicate with counsel for the party to be
54A chambers opinion of Chief Judge Posner suggests appropriate reasons for filing an amicus brief
that might be incorporated into the motion:
An amicus brief should normally be allowed when * * * the amicus has an interest in some
other case that may be affected by the decision in the present case (though not enough affected to
entitle the amicus to intervene and become a party to the present case), or when the amicus has
unique information that can help the court beyond the help that the lawyers for the parties are
able to provide.
Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997). Commentators have,
however, suggested that the Ryan criteria are too narrow. L. Mumford, When Does the Curiae Need an
Amicus? 1 J. APPELLATE PRAC. & PROC. 279 (1999).