Amicus Practice in the Texas Supreme Court

Part of a panel presentation on May 17, 2012 at the Austin Bar's civil appellate section

Transcript

1. A snapshot of amicus practice in Texas Don Cruse Law Office of Don Cruse (512) 853-9100 don@doncruse.com Presented as part of a panel on May 17, 2012 to the Austin Bar Civil Appellate Section
2. About this data: • ese gures are from my own databases for the Texas Supreme Court and U.S. Supreme Court. • Annual numbers are broken down by “ scal year,” so each represents a September-to-August year. • Counts for “amicus briefs” include “amicus letters.”
3. Are people filing amicus briefs? 0 75 150 225 300 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 233 248 226 179 231 186 184 167 236 179 173 220 141 by Term (2012 partial year) There’s a pretty solid floor around 180 briefs per year. Spikes in 2008 and 2011 are from concentrated rehearing amicus briefs in a few cases.
4. 0 50 100 150 200 250 300 350 400 450 500 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 20 22 38 47 1 1 1 1 1 2 4 7 2 3 4 12 5 12 18 20 32 60 122 215 458 Number of Cases ... With This Number of Amicus Briefs What is the distribution of briefs across cases? considering 981 cases with amicus filers since the 2000 Term A significant number of amicus briefs were the only one filed in the case.
5. Amicus briefs filed, but no merits briefing requested 0 15 30 45 60 75 90 105 120 135 150 1 2 3 4 5 6 7 8 22 1 1 1 1 1 3 16 32 116 Cases with each number of amicus briefs An amicus brief is not an absolute guarantee of making it to the merits- briefing stage. But of these briefs, almost half were filed on rehearing – when odds are lowest – rather than with the petition.
6. When are SCOTUS amicus briefs filed? 0 1500 3000 4500 6000 Cert Stage Merits Stage Argument Rehearing 0 1 621 1470 0 6 5928 3150 October Term 2003-present (data from CertPool.com) In US Supreme Court practice, most of the briefs are filed after the Court grants review, which encourages amici from both sides to step forward. And, unlike Texas, there is no concept of an amicus brief taking issue with an opinion the Court has already issued. Amicus Briefs Cases with at Least One
7. 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012* 0 75 150 225 300 PFR BOM Grant Submitted Rehearing When in the process are SCOTX briefs filed? The yellow stripe is the ideal time for a reluctant amicus – or any amicus supporting the Respondent. But relatively few are filed between the grant and oral argument. These gray stripes? Rehearing, where the odds are the lowest.
8. Severance Edwards Aquifer Sahib Lamar Homes Denbury Dealers Electrical Dallas v. Stewart 0 10 20 30 40 50 12 15 14 6 20 1 39 0 0 1 6 0 10 3 1 0 3 8 0 14 5 1 0 0 0 0 4 0 1 1 1 0 2 9 0 PFR BOM Grant Submitted Rehearing What about the “top” cases? Here’s a case where the flock of rehearing-stage amicus briefs might have made a difference. Severance and Lamar Homes were both certified questions. And six of these seven involved takings or land use.
9. Are briefs really clustered before argument? 0 55 110 165 220 0 55 110 165 220 Days before argument brief is filed Days between grant and argument Even when the parties have much more notice, amicus briefs are still clustered within two weeks of argument date.
10. Some Types of Amicus Briefs • Factual information outside the record as background for issues • Brief about practical effects of an opinion • “Expert” brief (economist, etc.) • “Highly technical” brief (for a technical case) • Industry brief • Offering a narrower way to decide the case • Offering a broader way to decide the case • The surprising position brief: unexpected source • Filling in for party briefs that were not adequate • Brief by a government (OSG in particular)
11. Survey of former SCOTUS Clerks source: Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 JOURNAL OF LAW AND POLITICS 33 (2004)
12. Other Types of Amicus Briefs in SCOTX • The “letter to the editor” brief • The “this is important” industry letter • Linking a petition to one or more other pending cases on the docket that affect you • The “OMG!” brief on rehearing Amici can submit a short letter, and they are encouraged to if they have little to say. Texas timetables allow parties to weigh in about the docket more generally as issues emerge.