The IADC Amicus Brief Program: Its Increasing Success and Influence By Mary-Christine Sungaila An appellate partner at Snell & Wilmer L.L.P. in California, Mary-Christine Sungaila has chaired the IADC Amicus Curiae Committee since 2010. Under her leadership, the committee has prevailed in every merits case in which it has participated. Ms. Sungaila also chairs the Appellate Practice Committee of the IADC, is a member of the Board of the Foundation of the IADC, has served on Annual CLE committees and the IADC Nominating Committee, and lectured on appellate record preservation at the IADC Trial Academy on multiple occasions. She also co-chairs the ABA’s Litigation Section Committee on Amicus Curiae Briefs and was appointed by the ABA President to the seven-member Standing Committee on Amicus Curiae Briefs, which reviews and approves all amicus briefs filed in the name of the ABA. NCE rare, amicus curiae or participation in all civil cases in the 2007 ‘‘friend of the court’’ briefs are term).2 The number of civil cases before O now filed in the majority of appel- the Court each term ranged from thirty- late cases heard by the United States Supre- nine to sixty-one; the total number of me Court and various state supreme courts. amicus briefs filed each term in those cases In the United States Supreme Court, ranged from 344 to 627.3 amicus briefs were filed in thirty-five ‘‘Historically, state courts were more percent of the Court’s cases in the 1965– likely than the U.S[.] Supreme Court to 66 term; by 1995, one or more amicus limit the role of amicus participation in briefs were filed in nearly ninety percent of appeals.’’4 Nonetheless, the number of the Court’s cases.1 An analysis of the 1999 amicus briefs filed in state high courts to 2008 terms showed that in civil cases the average filing rate for amicus briefs was 92.4% (with a high of 100% amicus 2 See Mary-Christine Sungaila, A Friend in Need is a Friend Indeed: The Increased Prevalence and Influence of Amicus Briefs, IADC Appellate 1 See Mary-Christine Sungaila, Effective Amicus Practice Committee Newsletter (March 2010). Practice Before the United States Supreme Court: A 3 Id. Case Study, 8 S. CAL.REV.L.&WOMEN’S STUD. 187, 188, nn. 4–6 (1999) (citing data from 4 Sarah F. Corbally, Donald C. Bross, and Victor Supreme Court advocate Bruce Ennis, a respected E. Flango, Filing of Amicus Curiae Briefs in State Supreme Court treatise, and a news report in the Courts of Last Resort: 1960–2000,25JUST.SYS.J. ABA Litigation News). 39, 43 (2004). The IADC Amicus Brief Program 33 tripled in the 1980s.5 The growth in use of pressly referred to positions urged by amicus briefs has not been uniform across amicus groups and relied heavily on all states, however. The frequency of historical, social, and medical data provid- amicus participation between 1960 and ed by amici. In the companion case of Doe 2000 was highest, according to one study, v. Bolton,11 the majority expressly relied before the Florida, Massachusetts, North on data provided by amici showing that Carolina and Washington high courts; two facilities other than hospitals are adequate previous studies revealed the top five states to perform abortions, and rejected the for amicus participation to be California, state’s contrary argument. In Grutter v. Michigan, New Jersey, New York, and Bollinger,12 the Court upheld the race- Ohio.6 based admissions policy of the University My own survey of amicus filings in the of Michigan Law School; at oral argument California Supreme Court reveals high and in the Court’s decision, the justices amicus participation in the past decade. referred to and relied on the amicus brief The amicus filing rate was 59.7% from of retired military officers.13 And, in the 2000 to 2009 in civil cases; out of 707 2013 term, the Court advised counsel for cases decided by the court, 422 had one or parties in a case in advance of oral more amicus briefs.7 The average number argument that they should be prepared to of amicus briefs filed in each case is also address an argument made in an amicus increasing. In the California Supreme brief filed in the case. Court, 1,868 amicus briefs were filed in The Court’s citation of amicus briefs 422 of the 707 civil cases decided by the has also increased. According to one study, 8 court between 2000 and 2009. Indeed, United States Supreme Court justices the California Supreme Court has even directly mentioned at least one amicus invited the submission of amicus briefs in brief in eighteen percent of the cases in 9 some cases. which amicus briefs were filed between the With increased amicus participation 1969 and 1981 terms.14 Another study has come increased amicus influence. reveals that, ‘‘of all [United States Supreme Amicus briefs have repeatedly provided Court] opinions published between 1986 the United States Supreme Court with and 1995, approximately fifteen percent information and legal theories that have influenced the Court’s decisions. The majority opinion in Roe v. Wade10 ex- 11 410 U.S. 179, 195 (1973). 12 539 U.S. 306 (2003). 13 5 Id. at 44. See Dan Schweitzer, Fundamentals of Preparing a United States Supreme Court Amicus Brief,5J. 6 Id. at 46. APP.PRAC.&PROCESS 523, 523–524 & n.4 7 A Friend in Need is a Friend Indeed, supra note 2, (2003). The California Supreme Court has also at 2–3. discussed the argument of amici at length in its 8 opinions. See Potter v. Firestone Tire & Rubber Id.at3. Co., 6 Cal.4th 965, 991–992 (1993); In re 9 Cf. High Profile Cases, California Courts: The Marriage Cases, 43 Cal.4th 757 (2008). Judicial Branch of California (Sept. 27, 2013, 14 Karen O’Connor and Lee Epstein, Court Rules 3:11 PM), available at http://www.courts.ca.gov/ and Workload: A Case Study of Rules Governing 2964.htm. Amicus Curiae Participation,8JUST.SYS. J. 35, 10 410 U.S. 113, 148–152 (1973). 42–43 (1983). 34 DEFENSE COUNSEL JOURNAL | JANUARY 2014 cited at least one amicus brief by name, program to include cases before the United and thirty-seven percent referred to at States Supreme Court and some courts of least one amicus brief’’ without citing or appeal. As the Appendix to this Article naming it.15 More than sixty-five percent shows, since 2007, the IADC has partic- of the amicus briefs filed in the United ipated in twenty-three cases: thirteen cases States Supreme Court in 1992 contained at the merits and/or certiorari stage, and information not found in the briefs of the ten cases at the review or certiorari stage direct parties.16 alone. A survey of amicus brief filings in State The IADC has an overall record of supreme courts showed that amicus briefs prevailing in 70 percent of the merits cases were acknowledged or cited in thirty-one in which it has participated, and a 100 percent of cases, and arguments made in percent win rate in merits cases it has amicus briefs discussed in eighty-two participated in during the last four years. percent of the cases sampled.17 When they In the process, the IADC has helped shape were asked what percentage range ‘‘most the law surrounding product liability, accurately describes the number of amicus arbitration, class actions, attorney client curiae briefs in your court which are privilege, punitive damages, civil discov- influential,’’ ‘‘27 percent of the justices ery, standing, jurisdiction, and tort re- regarded fewer than a quarter influential, form. The IADC has also built alliances 32 percent considered between a quarter with other organizations, often joining and one-half influential, and 36 percent briefs alongside PLAC, the American considered between one half and three Chemistry Council, the National Associa- quarters influential.’’18 tion of Manufacturers, the Washington Legal Foundation, and the Atlantic Legal I. The IADC Amicus Program Foundation. This Article reviews two State appellate Against this backdrop, beginning in court decisions and one U.S. Supreme the mid-2000’s, the IADC formalized its Court decision to demonstrate the depth, amicus program and began to increase its breadth, and influence of IADC amicus amicus participation. Under the leadership briefs in cases in which it participates. of Texas appellate lawyer Lauren Harris, the Amicus Curiae Committee began II. Case Studies: State Appellate participating in cases before State supreme Court Victories courts. The IADC has since grown the At the Court of Appeal’s invitation, the IADC participated as amicus curiae in a 15 Kelly J, Lynch, Best Friends? Supreme Court Law California case with a broad impact on Clerks on Effective Amicus Curiae Briefs, 20 J.L. & discovery against corporate defendants.19 POL. 33, 35 (2004). 16 Plaintiffs in the case filed a product Victor E. Flango, Donald C. Bross, and Sarah liability action arising from an accident Corbally, Amicus Curiae Briefs: the Court’s Perspective,27JUST.SYS. J. 180, 181 (2006). 17 Corbally, Bross & Flango, supra note 4, at 53. 19 Toyota Motor Corp. v. Superior Court 18 Flango, Bross & Corbally, supra note 16, at (Stewart), 197 Cal.App.4th 1107 (Cal. App. Ct. 185. 2011). The IADC Amicus Brief Program 35 that took place in Idaho, and sought to conclusion is not limited to individual depose in California five employees of witnesses, but also applies to a court order Toyota who were Japanese residents.20 directing that a party produce for deposi- They were designated as individual em- tion a specifically named non-resident ployees, not as corporate representatives.