Example 15.6
Takeaway point 15.6: When you represent an amicus, your strongest move is often to present insights and perspective that the actual litigants lack.
Too many amicus briefs merely reiterate the arguments raised by the parties, a practice that some judges deride as submitting a “me too” brief (i.e., the actual litigant says what it thinks and the amicus essentially writes “me too!”).
Briefs add more value when they provide a distinctive argument, and that argument will often rely on amici’s expertise or unique perspective. Think carefully about what your amicus client knows that the litigants and the judges do not. Example 10.4 presented this technique: senior military officials explained why the armed forces needed affirmative action to run the nation’s volunteer army effectively.The same technique appears below. A company challenged the Dr. Miles antitrust doctrine, which prohibited companies from agreeing with their retailers to set a “floor” on the price that vendors charge for the company’s goods. Such agreed-upon price floors, called “vertical minimum resale pricing,” were per se illegal under the federal antitrust law called the Sherman Act. The golf equipment manufacturer PING filed an amicus brief to argue against the per se rule and to advocate a more lenient “rule of reason” standard, which would enable courts to examine vertical price agreements on a case-by-case basis. PING had unilaterally imposed price floors on its retailers without their agreement (making the policy legal); this brief explains what happens to vendors who sold products below PING’s price floor.
Source: Amicus brief of PING, Inc. in Leegin Creative Leather Products v. PSKS, 551 U.S. 877 (2007).
The first sentence sounds the theme of the brief: companies must go to “extraordinary lengths” to comply with the Court’s doctrine. The brief immediately presents its distinctive value to readers to grab their attention: this sort of aggressive marketing of a brief’s usefulness is necessary for amicus briefs, which are often skimmed or ignored.
The list signals that PING took the Court’s doctrine seriously and invested money and human capital in compliance. That builds credibility and good will. Then the last two bullets show the negative consequences of compliance. This list sets up the transition to PING’s critique of Dr. Miles and Colgate.
Notice how powerful a short sentence is after a long one. Pay attention to the rhythm of your writing, as discussed further on pages 250-51.
Once again, PING uses its unique knowledge (of which retailers it terminated) to inject facts into the dispute that the other side cannot cross-examine PING about. Amicus briefs add power when then add facts and specialized knowledge. The Supreme Court cited PING’s brief favorably in overruling Dr. Miles.
Amici can more aggressively call for the overruling of a precedent than litigants. They should be sure that they do not undermine their ally’s goals (such as by saying that a case needs to be overruled when the actual litigant says that the case can be distinguished). Try to confer with the party’s counsel to learn its key arguments. Likewise, if you line up amici, think about which groups will help your cause and how to make sure that they do not inadvertently sabotage your case.