Amicus Practice: New Rules for Old FriendsAuthor(s): David B. SmallmanSource: Litigation, Vol. 25, No. 2, APPEALS (Winter 1999), pp. 25-30Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760050 .

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Amicus Practice:

New Rules for Old Friends

by David B. Smallman

I do not like to have the Court exploited as a soap box or as an advertising medium, or as the target, not of

arguments but of mere assertion that this or that group has this or that interest in a question to be decided.

?Justice Felix Frankfurter

Most of the cases that come before the Court involve matters that affect far more people than the immediate record parties. I think the public interest and judicial administration would be better served by relaxing rather than tightening the rule against amicus curiae briefs.

?Justice Hugo L. Black

Your longstanding friendship with Beth, the general counsel of talk show host Everett Huey's syndication company, had resulted in a sizeable amount of local business over the past few years. The high profile work, however, always went to the big Atlanta firm where Everett's brother-in-law is man?

aging partner. The most recent case?a bet-the-company trial?was no exception.

A year ago, The Everett Show reported on rumors that bac? teria associated with reptile flesh caused irreversible tooth

decay. At the show's conclusion, Everett told millions of lis? teners that he had heard enough: no more saurian fajitas for him. Overnight, the booming world market for alligator and rattlesnake?the newest "white meats"?collapsed. Within weeks, the Reptile Farmers' Collective filed suit

under the state's new food-disparagement statute. After a three-week circus?dubbed "Scales of Justice: The Great

Reptile Trial" by Court TV?a jury socked Everett with $100 million in compensatory damages. Subsequently, the district judge denied Everett's post-trial JNOV motion.

Everett had no choice but to take the case up to the U.S.

David B. Smallman is with Simpson Thacher & Bartlett in New York City, and is outside counsel to Investigative Reporters and Editors, Inc.

Court of Appeals for the Thirteenth Circuit. You heard

through the grapevine that trial counsel might be replaced for the appeal, and you hoped to get the nod as appellate counsel.

When Beth finally calls, however, she tells you that another firm, Fenner, Clock, Bacon & Stump, has taken over the case.

"It's been pure hell," she confides. "Everett had to fire his brother-in-law's firm. He picked Fenner, but I need some help from you."

"That's what we're here for," you say, trying your best not to sound too excited.

"I know it's late in the game, but we need an amicus brief from the talk show industry to advance the ball for us in the Court of Appeals. Some members were con? cerned about how the sponsors would react, but I've per? suaded The Talk Show Syndicators Association (TSSA) to support us with an amicus filing. Because I'm the new chair of their governing board, it wasn't difficult," Beth chortles. "I was asked to recommend a firm to them to write the amicus brief?and I thought of you." This is not exactly the lead role you were hoping for. But

if the amicus brief is only a consolation prize, it is a good one. You graciously thank her for the opportunity and ask what she has in mind.

Beth says that she is not looking for you to reinvent the wheel or come up with ground-breaking constitutional argu? ments. Instead, she is looking for a solid "me-too" brief, strongly backing Everett's position that the food-disparage?

ment statute is unconstitutional on its face. Beth agrees to send you the most recent draft of Fenner's brief. She gives you the name of a contact attorney with TSSA.

"By the way," adds Beth, "I've told TSSA that we would cover the costs of the amicus brief, so just pass on the bill to me and we'll see that it gets paid."

"Sure thing."

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"One last detail," says Beth. "Just so you know, we have an unwanted amicus from some wacko group against cruelty to reptiles. I tried to dissuade their

lawyer from filing, but he went ahead and submitted a brief and a compendium of attachments to his motion for leave to file. I'll send it over for you to look at."

Beth's package arrives within the hour. You have your sec?

retary hold all your calls while you plow through the four inch stack of paper.

Fenner's main brief for appellant is comprehensive and meticulous. You are a little surprised to discover that it

already covers, for the most part, your main point about the district court judgment's chilling effect on the content of syn? dicated talk shows. It also reviews the history of food-dis?

paragement statutes and mounts a persuasive attack upon their constitutionality.

The unsolicited brief filed by The International Coalition of Reptile Pet Owners is also excellent. It provides a cross cultural history of food taboos and their bases in folk wisdom and common sense. The attachments to the brief are an up to-the-minute catalogue of medical and scientific papers. They include excerpts from Morbidity and Mortality Weekly Reports, which demonstrate the epidemiological dangers of

consuming exotic animal flesh, such as monkey brains

(Ebola virus) and barracuda (ciguatera toxin). Your job looks easier by the minute. Several years back

you prepared a similar "me-too" amicus brief for another trade association group, and it opened the door to important relationships for you and your firm. Never change a winner,

you think to yourself. You retrieve your old amicus brief from a storage disk and clone it. You then hunker down at the

computer and begin reworking it for the new client. In a day, you have a polished version of a TSSA brief to circulate

among the firm's executive committee, from which you receive praise for your artful drafting?and, more impor? tantly, for your rainmaking prowess.

The feedback is not all glowing, however. One of the part? ners has forwarded the brief to a recent new hire who has just finished her clerkship at the Thirteenth Circuit. She sends

you a somewhat impolitic e-mail, warning that, "'me-too' briefs like this are out of favor in at least one circuit. Let me know if you'd like to see the case."

You grab the speaker phone and try not to be too patroniz? ing in responding to her:

"It's not an ordinary 'me-too' brief," you explain in a tone of voice that quickly shifts from pedagogical to

pedantic. "It goes beyond the specific interests of the client. It's a statement of belief from a powerful media

organization. It has great weight. Our firm stands behind it. And although you just started here, that means something in this city."

The associate is uncowed. "But Judge Posner ..."

You cut her off. "Judge Posner does not sit on the Thirteenth Circuit. The amicus brief you've read is based on a brief filed in our circuit court a couple of

years ago. It was accepted for filing on motion. I've won at least two cases in the Thirteenth Circuit in which the Seventh Circuit was completely at odds with the

position of our client. Can you point me to a single Thir? teenth Circuit opinion that suggests a different course?

No? Well then thank you for your comments."

Associates! When they start out, they are so close to the law that they seem to lose their common sense. You pull the brief up on your computer screen and begin preparing a

short, proforma motion for leave to file?required in your circuit by local rule even though all parties have consented.

Whatever the outcome, for you this seems a no-lose

proposition. Fenner takes the hit if the appeal goes down in flames. You have helped Beth, marketed the firm's work to a vast new client base, and engaged in a bit of shameless self

promotion. And, although the time you have billed is rela?

tively small, at least you will not have to chase it down in collections eight months from now.

Four weeks later, a thin envelope arrives with a return address for the United States Court of Appeals for the Thir? teenth Circuit. You scan the caption and turn to page 2.

Order On September 15, 1998, Talk Show Syndicators

Association filed a motion for leave to file a brief as amicus curiae. Appellants' consent to this motion was filed on September 16,1998. Appellees' consent to this motion was filed on September 17, 1998.

Talk Show Syndicators Association's motion is denied.

/s/For the Court. You read it over five times. The court must have made an

error. It happens. The clerk's office gets overwhelmed. They make typos. They must have meant to put in "granted" instead of "denied."

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You open the other envelope. It contains another order. The amicus brief of The International Coalition of Reptile Pet Owners, together with its compendium of attachments, has been accepted for filing. Now you are certain that a mis? take has been made. You call the deputy clerk and leave a voice mail message. She calls back that afternoon.

"I received an order today," you explain. "It stated that TSSA's motion for leave to file an amicus brief was denied."

"That's right," says the deputy clerk. "I've checked with the judge. Your motion was denied."

"But the other motion for leave to file was granted?" "Yes, I've checked on that too," she says. "It was

granted. Both the brief and the compendium of attach? ments were accepted for filing."

"But.. .," you sputter. "The rules permit a motion for clarification," says the

deputy clerk. "I'm not suggesting that you file one, but

you are certainly entitled to."

You call Beth and the client and sugarcoat the bad news as best you can. Like you they are puzzled, and they give their

permission to ask the court to explain its terse rejection. Heart

pounding, you then bang out the motion for clarification. A couple of weeks later, another envelope arrives from the

Thirteenth Circuit. You tear it open; inside is an opinion from the Chief Judge of the U.S. Court of Appeals for the Thir? teenth Circuit. It reads as follows:

Opinion and Order on Motion for Clarification The Talk Show Syndicators Association has moved

under Fed. R. App. P. 29 for leave to file a brief amicus curiae in support of the appellant in this case. The motion was referred to me as motions judge, and I denied the motion without a statement of reasons. TSSA has submitted a further motion seeking, in essence, an explanation for my ruling.

The amicus brief at issue here was submitted by a trade association (closely affiliated with appellant, who chairs its governing committee) and offers little more than a bare-bones endorsement of belief in appellant's position. Granting, for the sake of argument, that there

may be circumstances in which such a brief would be

useful, TSSA has not shown this is such a case. TSSA has not supplied to the court's satisfaction reasons why its brief as amicus curiae is desirable. As Chief Judge Posner has stated:

The term "amicus curiae" means friend of the court, not friend of a party . . . An amicus brief should normally be allowed when a party is not

represented competently or is not represented at

all, when the amicus has an interest in some other case that may be affected by the decision in the

present case ... or when the amicus has unique information or perspective that can help the court

beyond the help that the lawyers for the parties are able to provide.

Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997) (in chambers).

TSSA's arguments, such as they are, have already been set forth by appellant's counsel in her briefing, and

present no new perspective for the court's considera

tion. In marked contrast, the brief of amicus curiae The International Coalition of Reptile Pet Owners (ICRPO), which the court has accepted for filing, presents unique information and a perspective that can assist the court

beyond what the lawyers for the parties are able to pro? vide. See id. This court can "draw of necessity upon the sources commonly drawn upon for constitutional adju? dication: 'constitutional facts' of record, judicial notice ... and relevant policy concerns advanced in the briefs

of . . . amici." Garris v. Hanover Ins. Co., 630 F.2d

1001, 1010 n.7 (4th Cir. 1980). See Fed. R. Evid.

201(f), Advisory Committee Note (judicial notice may be taken, at discretion of court, on appeal). While Local Rule 28 requires that good cause be shown before attachments to briefs will be accepted, that standard was met in this instance. Accordingly, we granted ICRPO's motion, and their proposed amicus curiae brief and compendium of attachments to brief were

accepted for filing. See Food Lion, Inc. v. Capital Cities/ABC\ Inc., No. 97-2492(L) (CA-92-592-6) (4th Cir. March 30, 1998) (Order granting motion of Inves?

tigative Reporters and Editors, Inc. for leave to file brief as amicus curiae and its motion for leave to file com?

pendium of attachments to brief pursuant to Local Rule

28(b)). Conversely, we denied TSSA's motion.

The motion for clarification is granted, and the denial of TSSA's motion for leave to a file a brief amicus curiae is reaffirmed.

/s/For the Court.

You stare out the window for the following ten unbillable minutes, pondering your next move. Your musing is inter?

rupted by a call from The National Law Journal. Counsel for the Reptile Farmers' Collective has faxed them a copy of the decision denying your motion. They would like you to com? ment.

# * # *

Judge Ruggero J. Aldisert, senior judge of the U.S. Court of

Appeals for the Third Circuit, recently noted that when he became a member of that court, each active judge was respon? sible for deciding 90 cases a year. Twenty-eight years later, he

The bar for amici's admission has recently been raised.

observed, the national average for each active circuit judge had almost quintupled to 449 cases. Divide 449 cases into 255

working days, and you have one fully briefed case for decision

every 4.9 hours?"All of this in the highest court to which a federal litigant has a right to take an appeal," he said.

These numbers tell a story that transcends foolish self-pro motion by counsel and tactical blunders by overzealous appel? lants. True, TSSA's counsel contributed to her own demise by unwisely relying upon old habits and by ignoring warnings from a sharp associate. But like the hopeful "friend" rejected by Judge Posner in Ryan, she also fell victim to habits that have been superseded by a new set of circumstances.

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To state it simply, the bar for amici's admission has

recently been raised. Until a year ago, that bar?the discre?

tionary criteria for acceptance of amicus briefs by non?

government actors as framed by Fed. R. App. R 29 and fed? eral common law?seemed to be set relatively low. Briefs of amici curiae merely needed to be "desirable," a standard

apparently satisfied in most cases by just showing up. Today, what is "desirable" may mean something altogether different.

According to Judge Posner, we are now in "an era of heavy judicial caseloads and public impatience with the delays and

expense of litigation." Ryan, 125 F.3d at 1063. For that rea? son, amicus briefs will be deemed desirable only when:

? a party is not represented competently or is not repre? sented at all;

? an amicus has an interest in some other case that may be affected by the decision in the present case (but not

enough of an interest to support intervention); or, ? the amicus has unique information or perspective that can help the court beyond what the lawyers for the

parties are able to provide. In the modern setting, amici are thus on notice that unan?

ticipated or selective application of the criteria for submis? sion of their briefs can suddenly prove fatal. See American

Trucking Associations, Inc. v. Environmental Protection

Agency, Nos. 97-1440, 97-1502, 97-1441, 97-1599, 97

1546, 97-1619, 1998 WL 65651 (D.C. Cir. Jan. 21, 1998) (amicus has not sufficiently identified its interests in case and how its participation would assist the court; motion for leave to appear denied).

As discussed below, however, whether you are a friend to the court, a friend to a party, or a neutral advocate for an issue that simply matters to your client, the death of a proposed amicus filing?even the dreaded "me-too" brief?should be

preventable in nearly all cases. Here's how. ? Pay close attention to new rules and evolving case

law. Remember, you are an amicus curiae, not a party. If you believe that your client belongs in the case, intervene. Other?

wise, you are bound to follow the applicable rules governing "friends" rather than parties. You must know these rules, including the local rules of practice, to be able to discern

which way the judicial winds are blowing in your forum.

Rule Changes The Ryan decision, after all, did not occur in a vacuum.

Seven years earlier, the United States Supreme Court admon? ished potential amici with an addition to Supreme Court Rule 37, after it received 78 amicus briefs?the largest num? ber ever filed with that Court?in Webster v. Reproductive Health Services. The 1990 revision did not mince words:

An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been

brought to its attention by the parties is of considerable

help to the Court. An amicus brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favored.

Another major rule change followed in 1997, this one amidst controversy over the perception that parties were cir?

cumventing the page limits on their briefs by writing and/or

financing amicus briefs. New Rule 37.6 requires that an ami? cus disclose whether counsel for a party wrote the brief in

whole or in part and also requires identification of every per? son or entity?other than the amicus, its members, or its counsel?who made a monetary contribution to the prepara? tion or submission of the brief. Commentators have noted that although the rule is not designed to discourage solicita? tion of amici by parties or reasonable consultation and com?

munication between them, it probably triggers mandatory disclosure even for major rewrites or revisions of an amicus brief undertaken at a party's behest. Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller, Supreme Court Rules: The 1997 Revisions, 5-6 (1997).

After making significant changes to its own rules regard? ing amicus practice, in 1998 the Supreme Court prescribed

major revisions to the Rules of Appellate Procedure?

including a substantial overhaul of the rule governing briefs

What worked yesterday may not work today.

of amicus curiae. Here, too, some of the changes had already been foreshadowed by local rules of various circuits. See, e.g., D.C. Circuit Court of Appeals Rule 29(a) (brief of ami? cus curiae shall avoid repetition of facts or legal arguments made in the principal brief, and shall focus on relevant points not made or adequately elaborated upon in the principal brief). Amended Fed.R.App.P. 29 requires that an amicus state not only the reason why its brief is desirable?the stan? dard applied in Ryan?but also "why the matters asserted are relevant to the disposition of the case." Moreover, an amicus must now include a concise statement of its "identity," "its interest in the case," and "the source of its authority to file."

Another significant change provides some breathing room for the intended amicus while promoting compliance with these more stringent requirements. No longer is the amicus brief due on the due date of the supported party's brief.

Instead, an amicus now has up to "7 days after the principal brief of the party being supported is filed."

But the extra week comes with a catch: The motion for leave to file may no longer be filed ahead of time, but must now accompany the brief. An amicus will therefore be

expected in all circumstances to know about (or have access

to) the brief already filed by the party it supports. Accordingly, courts will also expect the amicus to avoid repetition and to

comply strictly with the Rule 29 criteria. Perhaps most signif? icantly, because the brief must now accompany the motion for leave to file (as already required by local rule in some circuits), all federal appellate courts will have a threshold mechanism to

reject amici curiae who stumble at the gate. Overall, these changes are not subtle, nor is their message all

that difficult to decipher. The federal appellate courts will now

require proposed amici to tell them why their participation is desirable (i.e., have they brought anything new and helpful to the table), how their position is relevant to the case, who the amicus is, and what they are doing there in the first place.

State courts, in varying degrees, also have begun to crack down on perceived abuses in amicus practice. For example, amicus briefs in the Texas state appellate courts are received but not immediately filed by the court clerk and must dis

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close "the source of any fee paid or to be paid for preparing the brief." Tex. R. App. R 11. Similarly, the California

Supreme Court now requires putative amici to obtain per? mission from the Chief Justice before their briefs on the mer? its of an action or proceeding may be filed. Cal. Rules of Court 14(b). In New York's highest court, on the other hand, the language of Court of Appeals Rule 500.11(e) on submit?

ting amicus briefs closely parallels the standard identified in

Ryan, but amici have been encouraged and praised for

"enlarging] our comprehension of the broad potential impact of issues presented." Niesig v. Team 1,76 N. Y2d 363, 375-76 (1990). With the terrain shifting rapidly beneath their feet in both

state and federal forums, would-be friends of the court are well-advised to identify the current applicable guidelines for

submitting a given amicus brief. What worked yesterday may not work today. What works today may not work tomor? row. A timely new resource is Reagan Wm. Simpson's Effec? tive Amicus Practice: How to be a Good Friend to the Court

(Tort & Insurance Practice Section of the American Bar

Association, 1998). For amicus practice in the High Court, the familiar bible has long been Supreme Court Practice

(and accompanying updates) by Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller. Such materials as the "Amicus Brief Preparation Checklist," pre? pared by The Reporters Committee for Freedom of the Press

(reprinted in PLI/PAT 522 (1998)), are also worth consult?

ing. Finally, many organizations active in amicus practice maintain extensive brief banks. Learn from these resources. The amicus brief you save may be your own.

? Plan ahead. An organization does not have to wait until the wolf is at the door before preparing amicus briefs that can

help its constituency and the court. For example, the Inter? national Association of Defense Counsel (IADC), has under? taken an initiative to identify half a dozen recurring issues that all of its members can agree on. By adopting a particu? lar approach to an issue, say punitive damages, and by artic?

ulating a basic theme, say "we are not opposed to punitive damages as a general matter, but are opposed to huge multi?

ples in punitive damage awards," IADC has tried to elimi? nate disputes over "friend of the party" briefs. The idea is to draft a short brief with a distinct view that can be used when? ever the need arises. Thus, although IADC represents a broad spectrum of interests, it offers a narrow amicus focus and sticks to it. As Daniel J. Pope, the chair of IADC's ami? cus committee, observes, "You can't be all things to all peo? ple and be effective."

? Do not be afraid to supply critical facts, but assemble them carefully. Amicus curiae representing divergent ideo?

logical viewpoints often support their positions by reference to matters outside the record before the court?the so-called Brandeis brief. Academic critics assert that these partisan organizations typically distort both empirical social science and other nonlegal authorities, such as medical or scientific

evidence, in their efforts to persuade rather than inform. The authors of a recent study, however, have concluded that in the U.S. Supreme Court, "justices usually cite amici for non

legal information and that those cites are often incorporated into their opinions." Jack E. Rossotti, Laura Natelson, Ray?

mond Tatalovich, Nonlegal Advice: The Amicus Briefs in Webster v. Reproductive Health Services, 81 Judicature 118

(Nov./Dec. 1997). The message is straightforward: amici

may benefit from offering a less-than-entirely-balanced pre? sentation of facts that go beyond the existing record, but the

reviewing court is free to reject irrelevant, inaccurate, or dis? torted information. By the same token, matters of public record or related materials that would survive scrutiny under

evidentiary standards for judicial notice are typically fair

game. Write your brief accordingly. ? Line up amicus support early. Assuming that amicus

support is desired, a good approach is to find similarly situ? ated entities at the earliest possible stage of the case. If a claim affects a nonprofit hospital, for example, contact another nonprofit hospital or an association representing hospital interests. Or let your client find a friend for you. Par

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ticularly in close-knit industries like healthcare, it is often better for one client to talk to other clients than to have the

lawyers involved.

Once amici have agreed to go to bat for you, you will need to communicate what you do and do not want from them. One prominent appellate lawyer suggests telling the amici not to belabor any specific point, but to focus in the broadest

possible terms on the ramifications of the case and what effect the decision will have. Another experienced counsel observes that the best approach is to pick lawyers who

already have keen interest in the issues and are not looking for specific rewards other than advancing the cause.

Recognize that even allies will have their disagreements, and try to recruit lawyers with whom you can engage in a constructive dialogue?lawyers who are aware that your col? lective credibility and political capital may be at risk and

who care enough to protect it. Look for an amicus who can deliver a clever and inventive brief that takes a fresh, even innovative approach. A party often does not want to do that in the principal brief, but an amicus can and often should.

Depending upon the case, an amicus may also be effective in

addressing a broad concern about an issue that does not fall within the specific ambit of the arguments about the case.

? Deal with the unwanted or outrageous amicus brief. This is really the flip side of finding an amicus. If you have a

runaway amicus "on your side," the best thing may be to

ignore the brief or distance yourself when you have an

opportunity to file your reply. Sometimes, it may not be sen

"Pve never read an amicus brief that's too short."

sible to make a fuss opposing filing when an amicus wants to take your side. As a practical matter, this may only draw unwanted attention to your unfortunate circumstance.

On the other hand, if a person or entity that is morally, eth?

ically, or otherwise repugnant to your client seeks to support your cause, or if the proposed amicus brief does more harm than good, you may have to demonstrate your dismay by fil?

ing a motion opposing leave to file. If you originally solicited the now-repugnant amicus, you may have to reveal that fact and explain your change of heart; otherwise the rejected ami? cus may disclose that you sparked its desire to be heard.

? Realize when you will not want amici. If your case involves purely legal arguments, introduction of extraneous information or policy issues can sometimes inject unwel? come unknowns into the equation. Perhaps you hope that the court will say "you win" in an unpublished opinion; a cause celebre is not always the best way to get to the desired result. Remember, your first obligation is to represent your client, not to grandstand for people you do not represent. Appeal cases in the way that is in the client's best interest. Amicus

input may not always serve that interest. ? Size doesn't matter. Freed from the constraints of res

judicata that would ordinarily bind a party, many an amicus

has found it difficult to terminate the download before all the data is on the page. But remember that in all but the rarest of situations, less is more when it comes to the brief of an ami? cus curiae. And if you cannot remember that, you must remember this: amended Fed. R. App. R 2(d), together with Fed. R. App. R 3(a)(7), generally requires that an amicus curiae certify that its brief contains no more than 7,000 words or no more than 650 lines of text. And amici are actu?

ally better off because of this rule. Asked to identify a key strategy for successful amicus briefs, Eve Burton, Vice Pres? ident and Assistant General Counsel of the New York Daily

News, remarked without hesitation: "I've never read an ami? cus brief that's too short."

* * * #

Although it has been cited by only a handful of other courts, Judge Posner's decision in Ryan has started to accu? mulate a fair amount of commentary from a startled bar. But the message of his decision is not that amicus briefs are sud?

denly out of vogue or unhelpful. Rather, it is that the courts and counsel must strike a balance that provides the decision

maker with all necessary information but does not unneces?

sarily overload an already overburdened judiciary. There is still an important place for amicus briefs. When

asked whether she felt concerned about the volume of briefs that crossed her desk, a state supreme court justice observed that judges want to be made aware of unintended ramifica? tions of ruling on a particular issue. It is important, for exam?

ple, that they know that their decision could put 30 percent of manufacturers of a certain product out of business, or dra?

matically raise costs to the public, or stop the way people are

doing business in a certain field. The justice said that she is

kept awake nights worrying that she may have missed some?

thing in an important case and that the court therefore could wind up with egg on its face.

Still, as Judge Posner and others have made clear, lengthy briefs that do nothing more than just restate what

parties or other amici already have said are a problem. Except perhaps in death penalty cases, appellate courts do not want or need to know what every interested group is

thinking. And sometimes they already know. Is it really much of a surprise in a products liability case that every auto manufacturer feels the same?

But that does not mean that there is no place for short, effec? tive briefs that say "we do" or "we do not" agree and "here is

why." Such briefs can let the court know about the conse?

quences of deciding a case one way or another. And they will not be repetitive if they focus upon unique policy concerns rather than bare opinions. Appellate judges want to know what is the right decision and why; what they do not want is to be told over and over again?even by their "friends."

Take a tour of amicus submissions and rulings through FINDLAW on the Internet, or through the LEXIS and WESTLAW databases. Even after Ryan, it is still unusual for

judges to reach out and reject amicus briefs. Neither the recent changes in the Supreme Court Rules nor the new amendment of the Federal Rules of Appellate Procedure slam the courthouse doors to amici curiae. Instead, given the

appellate caseload we ask our judiciary to shoulder, Ryan and the rules give practical guidance to amici and their coun? sel anxious to be heard above the resounding thud of papers landing in chambers. ID

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