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Submitting an Amicus Brief? Judge Michael Scudder of the Seventh Circuit Has Some Tips.

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By Joseph Fawbush, Esq. | Last updated on

Many judges welcome friend-of-the-court submissions as helpful tools to decide cases. However, according to Judge Scudder, who offered tips for submitting amicus briefs in a recent opinion, these briefs too often simply repeat the parties' arguments using different language. In effect, they are provided to show broad support for a position. According to Judge Scudder, an amicus brief should not be submitted as a vote from a special interest group for a particular outcome.

With that in mind, he offered a few tips for attorneys and organizations submitting an amicus brief. While the opinion is ostensibly about how to meet Rule 29(b) of the Federal Rules of Appellate Procedure, there is also enough practical advice given that appellate attorneys practicing in the Seventh Circuit might wish to take note.

Judge Scudder's Amicus Brief Tips

The most important thing is for an amicus brief to be additive – that is, contribute something otherwise overlooked. This could be through:

  • Offering a different legal analysis or an alternative legal argument to reach the desired outcome
  • Providing context through evidence, history, or statistics
  • Showing the practical effects of a particular outcome
  • Explaining complex scientific or technical aspects of the case
  • Identifying how other jurisdictions have resolved the issue

Explaining the Rationale for Allowing Amicus Briefs

The case at issue involves allegations that a power company is violating the Clean Water Act by polluting an Illinois waterway. Three organizations submitted amicus briefs, which were contested. The Federal Rules of Appellate Procedure do not offer a lot of guidance on how judges should decide whether amicus briefs are helpful, which prompted Judge Scudder to write the opinion. Under Rule 29(b), amicus curiae must have a sufficient interest in the case, their brief must be "desirable" and include information "relevant to the disposition of the case."

Judge Scudder offered these tips not to criticize amicus briefs submitted in the case in question. Instead, he provided them in explaining why he was allowing all three briefs. The organizations met his criteria "despite each brief containing some unnecessary and unwelcomed . . . repetition."

Because the point of an amicus is not just to have it accepted but to help influence the court to your position, it makes sense to add as much as possible to the discussion through the additions Judge Scudder suggests.

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