The California Supreme Court is a policy-making body. See Imre, "Mysteries Explained: California Supreme Court Policies and Procedures," Supreme Court Watch, 22 CEB Civil Litigation Reporter 242 (Nov. 2000). It generally accepts only issues of widespread importance — either because there is no controlling case law on the subject or there is a conflict in the reported decisions of lower courts. Thus, Supreme Court opinions have a significant effect on other litigants and often on entire industries or groups.
The role of the amicus curiae — or "friend of the court" — can often be critical to the court’s ability to intelligently address and decide these important issues. Amici curiae briefs are permitted under California Rule of Court 14. The rule contemplates that the amicus brief may set forth the "facts or questions of law that have not adequately been presented by the parties and their relevancy to the disposition of the case." Cal. R. Ct. 14(b). The court relies heavily on such briefs when examining the public policy ramifications of its contemplated decisions.
Unfortunately, however, many practitioners misunderstand the role of the amicus brief and rehash the issues raised by the parties instead of providing the court with a new perspective. Although there is something to be said for a "me too" approach, experienced appellate counsel agree that the most effective amicus brief takes a very different form. Because the court is making policy, it is interested in hearing about the consequences of its contemplated decision on litigants at large, something that the parties, wrapped up in their own dispute, often ignore or overlook. For example, a decision that will have a widespread effect on an entire industry is ripe for briefing by a friend of the court. An amicus brief can address potential effects for the court to factor into its decision, e.g., that a contemplated expansion of tort liability may result in higher costs of goods or services or escalating insurance premiums. Frequently, the amicus brief is the only vehicle at the court’s disposal that addresses the issue’s impact on nonparties.
Amici curiae briefs can also provide information not otherwise available to the court or personalize the issue in a meaningful way. The most famous example is the Brandeis brief. Supporting Oregon’s law forbidding women to work more than ten hours per day in a laundry, Louis Brandeis marshaled a wealth of social science data illustrating the adverse effect of long work days on women’s health. The U.S. Supreme Court relied on that evidence in deciding to uphold the law. See Muller v. Oregon, 208 U.S. 412, 52 L. Ed. 551, 28 S. Ct. 324 (1908). Although politically incorrect from today’s perspective, his creative approach provided a human perspective that the parties, haggling over the finer points of constitutional law, lacked.
Moreover, amici curiae often suggest a different rationale for, or approach to, the question for decision. By the time a case reaches the Supreme Court, the parties have briefed the same issues in the trial court and court of appeal. They tend to become wedded to their particular formulation, especially if represented by the same counsel. Sometimes a fresh approach is helpful; the friend of the court may restate the question in broader or different terms. Other times, the parties, constrained by the record or page limitations, simply cannot raise the broader issue with which the court should be concerned. The amicus brief can fill those unavoidable gaps. There are even times when the party is not the best spokesperson for the position being advanced; predictions of dire consequences of a contemplated legal change may seem more credible when the source is a nonparty rather than someone with a stake in the particular dispute.
In fact, because courts abhor deciding important issues in a vacuum, prudent counsel with a case pending before the high court may want to consider soliciting amici curiae briefs. Before launching an amicus campaign, however, careful planning is important. The amici must have a working knowledge of the record and the issues and should coordinate with the party’s counsel to avoid the danger of working at cross-purposes. A failed amicus campaign is one in which a friend of the court, intent on advancing a particular agenda, loses sight of the real issue or raises arguments that backfire, doing more harm than good to the position being advanced.
The most effective amicus briefs are short and to the point, focusing on a single issue and its consequences rather than a reiteration of all the arguments already briefed. When it comes to amicus briefing, there is something to be said for the "keep those cards and letters coming" idea; a large segment of the potentially affected industry or group weighing in can send a clear message that the issue is important. For example, in Vandenberg v. Superior Court, 21 Cal. 4th 815, 88 Cal. Rptr. 2d 366 (1999), the Supreme Court accepted 38 amici curiae briefs for filing, the vast majority (34) of which were filed on behalf of insureds or consumer groups. They argued that an insurer should not be able to assert that an arbitrator’s determination in an arbitration between an insured and a third party have collateral estoppel effect against the insured in a subsequent coverage suit. The "avalanche tactic" may have worked; in a controversial 4–2 decision, the court declined to follow the lead of other states and refused to give the arbitrator’s award collateral estoppel effect.
The appellate courts place such a high value on amicus briefs that they have been known to invite participation by friends of the court. See, e.g., Mez Indus., Inc. v. Pacific Nat’l Ins. Co., 76 Cal. App. 4th 856, 861 n.l, 90 Cal. Rptr. 2d 721 (1999). There have even been times when the court has decided an issue based solely on a point raised by an amicus brief. See Miller-Wohl Co. v. Commissioner of Labor & Indus., 694 F.2d 203 (9th Cir. 1982). This usually occurs when the parties themselves have not adequately addressed the issues or their policy implications.
Frequently, the Supreme Court will acknowledge the contribution of an important amicus brief. See, e.g., Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 991, 25 Cal. Rptr. 2d 550 (1993). But not always. Sometimes the court adopts the points of nonparties without attribution, court adopts the points of nonparties without attribution, even though they may have been instrumental in turning the tide. Either way, friends of the court can have a demonstrable and lasting impact on the development of case law.
CHRISTINA J. IMRE (christina.imre@sdma.com) is a partner in Sedgwick's Los Angeles office. An appellate lawyer with more than 20 years of experience, Ms. Imre specializes in civil appeals, writs and post-trial motions in bad faith, health care (including managed care), business torts, and institutional matters of significance to major corporations and insurers.