In mid-December 2022, Larry Ebner, the well-known appellate advocate behind Capital Appellate Advocacy in Washington, D.C., published an op-ed at Law360 titled Federal Courts Should Follow Supreme Court’s Amicus Stance. In this op-ed, Ebner noted that the U.S. Supreme Court had announced revisions to its rules, effective Jan. 1, 2023, that eliminate the requirement for amici curiae to obtain the parties’ consent, or the court’s permission, to file their amicus briefs. Ebner went on to argue that the corresponding rules for the federal circuit courts (see FRAP 29) should similarly be amended to eliminate the consent requirement for amicus briefs.
As Ebner explained, “A friend of the court, with something helpful to offer, should not have to ask the litigating parties to open the courthouse doors. They should open automatically to true friends of the court.” Given that (in light of the relatively few cases addressed on the merits by the U.S. Supreme Court) the federal circuit courts often function as courts of last resort on pressing and recurring issues that could benefit from thoughtful amicus participation and input, Ebner may indeed have a point. On the other hand, it is possible that elimination of the consent requirement could result in amicus overkill, with too many amicus briefs crowding out one another (or the parties) in certain appeals.
It will be interesting to see if the federal circuit courts of appeal follow the U.S. Supreme Court’s lead on this particular issue, and, if so, how long it takes for that to happen as a practical matter. As an aside, Ebner’s website also includes his helpful article on effective amicus briefs, titled How to Draft an Amicus Brief that Actually Gets Read. Sound advice on this topic is in high demand with more and more cases attracting more and more amicus briefs from interested non-parties. In significant cases that garner numerous amicus briefs, if you are representing one of many friends of the court on behalf of an interested client or trade association, it can be critical to try to make your brief stand out in the crowd. Dennis Hirsch, one of our former Appellate Practice Group colleagues, published another helpful article on this topic that is available on Porter Wright’s website, titled “Friending” the Court: Using amicus advocacy before the Ohio Supreme Court.
Should Ohio’s intermediate courts of appeal eliminate consent requirement for amicus briefs?
As it stands, the rules regarding consent for amicus briefs also differ as between Ohio’s state court of last resort and the intermediate appellate courts. At the Ohio Supreme Court, no consent of the parties or permission from the court is required to file an amicus brief, whether the friend of the court wants to chime in at the early jurisdictional stage (when the court is determining whether to accept discretionary review), the merit-briefing stage, or on reconsideration (when an amicus can support a party’s request or opposition to reconsideration, but cannot unilaterally seek reconsideration). Amici curiae can, and often do, also participate without consent in original actions in mandamus and prohibition at the Ohio Supreme Court.
At Ohio’s district courts of appeal, in contrast, since 1971, Rule 17 of the Ohio Rules of Appellate Procedure has expressly required consent for amicus briefs as follows:
A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Unless all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.
We know from experience that at least some of Ohio’s district courts of appeal, when it comes to consent for an amicus brief in support of the appellant, may limit that consent (when granted) to the opening brief, and not to an additional reply brief.
At Ohio Appellate Insights, we are practicing appellate lawyers who have been retained to draft briefs on behalf of amici seeking to have their positions heard before state and federal appellate courts. Amici may offer additional, helpful perspective to the reviewing court – counsel for either side may only see the law as they need it to win. While the amici may agree entirely with one of the parties, in our experience sometimes the amici can take a more nuanced perspective and offer analysis not proposed by either party.
We would be interested in getting comments via email from our readers about whether they agree with Ebner that federal circuit courts, like the U.S. Supreme Court, should eliminate the consent requirement for amicus briefs, and whether Ohio’s intermediate courts of appeal should do so as well.