All litigators have at least some familiarity with amicus briefs in the federal appellate courts. Such briefs give interested third parties—“friends of the court”—a say in important appeals that may result in binding precedent affecting the world at large.
What many litigators don’t know is that amicus briefs are also often allowed at the district court level. Yet well-read subject matter experts often spot impending appellate disputes while they are still at the trial court stage, giving them an opportunity to weigh in on a dispute before it even reaches the appellate court.
Unlike the federal appellate courts, many district courts—including the Northern District of California—do not have defined procedures for filing an amicus brief. Yet the district courts nonetheless have the discretion to allow amicus filings—and will often do so in the right case. See, e.g., United States v. Gotti, 755 F.Supp. 1157, 1158 (E.D.N.Y. 1991); NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 1067 (N.D. Cal. 2005); N. Carolina State Conf. of NAACP v. Cooper, 332 F.R.D. 161, 173 (M.D.N.C. 2019); Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974).
If you seek to file an amicus brief, you will need to seek leave of the district court. The motion for leave should state your client’s interest, explain how the amicus brief will assist the court, and should (of course) attach the amicus brief itself.
In addition, the following tips will help ensure that your amicus brief is accepted and considered by a district court:
Make sure the amicus brief is timely. It must give the opposing side an opportunity to respond. We have seen district courts reject amicus briefs filed too far along in the process.
Make sure to establish exactly why your client’s voice should be heard. Emphasize the personal or institutional expertise that your client has in the matter, or the potential negative consequences that your client may feel if the district court goes the wrong way.
Make sure your client’s amicus brief does in fact offer a unique perspective. If the brief simply repeats arguments made by a named party, the court may reject the brief as cumulative.
Make sure not to frame the amicus brief in overly argumentative terms. The role of amicus curiae should be limited to suggesting a different legal perspective or offering unique information to the court. Amicus filings phrased as “oppositions” or in other adversarial terms may be rejected as exceeding the role of an amicus curiae.
Make sure the amicus brief filed in district court otherwise adheres to the same procedural requirements of the applicable appellate court. Although not expressly required, this will give the district court assurance that fair procedures have been applied.
If you follow these tips, a blossoming friendship with the court may follow.
For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, or Joshua Korr.
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