Ah, the Amicus Brief–A chance to have a “neutral” organization weigh in on your side of the appeal, a potential second bite at the apple, and an opportunity to get the broader implications of your case before the Court of Appeals (without impacting the page limit of your own primary brief). 

Alternatively, if you have been contacted about preparing an amicus brief, you may be excited to work on such an interesting and important case. . . . Especially if you can find an “anonymous” deep pocket willing to pay the amicus’s legal bills.

Well, no more.  Under a late 2010 change to Federal Rule of Appellate Procedure 29(c)(5), most amicus briefs must now contain the following statements. 

Whether a party’s counsel authored the brief in whole or in part;

  • Whether “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and”
  • Whether “a person — other than the amicus curiae, its members, or its counsel — contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.”

This new rule requires amicus counsel to shine the spotlight on who is really paying the bills.  It also creates an interesting issue regarding what type of assistance constitutes “authoring a brief in whole or in part.” If counsel for a party merely gives feedback, would that need to be disclosed?  How much text can an amicus counsel copy or pull from a party’s brief or memorandum before the amicus brief is “authored in part by opposing counsel”? 

Whatever the answer, federal appellate courts appear keenly interested in knowing the identity of the man [or woman] behind the curtain.  As Judge Posner once said, an amicus is supposed to be a “friend of the court, [and] not [a] friend of the party.” See Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997).