The Briefs on the Merits - Bna

Ch. 13.14 <strong>The</strong> <strong>Briefs</strong> on the Merits 739
by requiring full disclosure of the pertinent facts in the amicus briefs. <strong>The</strong>
Court, which is inundated with amicus briefs in important cases, undoubtedly
detected that some of them bore striking resemblance, in substance and style,
to the merits brief of the party being supported by the amicus. <strong>The</strong>re were
known instances where counsel for a party not only solicited or inspired the
filing of an amicus brief but also wrote all or substantial portions of that brief.
Nor was it unknown for such counsel, having failed to compress all the party’s
arguments within the pre-2007 50-page limit imposed on merits briefs, to seek
a person or entity willing to assume an amicus role and also willing to let the
party’s counsel compose the amicus brief (with the former 30-page limit) so
as to present the additional arguments for the party. Thus, a party counsel, by
preparing an amicus brief, could expand to 24,000 words (formerly 80 pages)
the party’s written submissions to the Court. <strong>The</strong> Rule 37.6 disclosure requirements
are designed to discourage party counsel from taking over the
preparation and submission of supporting amici briefs. And those counsel intent
on continuing such practices should expect the Court to accord their
amicus briefs a lesser degree of credibility.
At the same time, Rule 37.6 does not mean to discourage party counsel
from soliciting supporting briefs from amici curiae. Nor does the rule require
disclosure of any coordination and discussion between party counsel and amici
counsel regarding their respective arguments, including the helpful practice
of supplying amicus counsel with copies of the party’s lower court briefs or
drafts of the party’s Supreme Court brief or petition. Often some form of
consultation and communication is both appropriate and essential if the amicus
brief is to be confined, as it should be under Rule 37.1, to “relevant
matter not already brought to [the Court’s] attention by the parties.” Moreover,
Rule 37.6 does not require disclosure of the fact that party counsel may
have reviewed an amicus brief in order to identify inaccuracies and avoid
repetition of matter already presented in the party’s brief. That such a review
may result in advice by party counsel that the amicus counsel rewrite, delete,
or add certain matter would not appear to constitute authoring the amicus
brief “in whole or in part.”
Rule 37.6 certainly requires that disclosure must be made whenever party
counsel actually writes or rewrites all or a substantial portion of the amicus
brief. Although the rule does not define “in part” authoring, the phrase would
seem to include any instance in which party counsel takes an active role in
writing or rewriting a substantial or important “part” of the amicus brief, with
the word “part” interpreted to mean something more substantial than editing
a few sentences. Just how much more constitutes “in part” authoring must
depend on the individual situation as well as the common sense and good
faith of counsel, with borderline situations being referred to the Clerk’s Office
for advice.
Finally, attention must be paid to the portion of Rule 37.6 that requires
identification in the amicus brief of “every person other than the amicus curiae,
its members, or its counsel, who made” a monetary contribution to the preparation
or submission of the brief. <strong>The</strong> Court wants to know not only whether
party counsel authored the amicus brief in whole or in part, but who, other
than the amicus, its members, or its counsel, bore the financial burden of