WHAT ARE FRIENDS FOR? OACTAs Amicus Program and Strategies for - - PowerPoint PPT Presentation

WHAT ARE FRIENDS FOR?

OACTA’s Amicus Program and Strategies for Soliciting and Writing Amicus Briefs

2019 OACTA Annual Meeting November 21, 2019 by BENJAMIN C. SASSÉ TUCKER ELLIS LLP

Overview of OACTA’s Amicus Participation

OACTA Amicus Philosophy

• Participation is part of OACTA’s strategic goal to advocate on behalf of

civil litigants in Ohio.

• Scholars and experts approach to legal issues.

How Often Does OACTA Participate?

Current Budget

1,191 Jurisdictional Appeals Filed * Taken from 2018 Supreme Court of Ohio Annual Report

When Does OACTA Participate?

1 2 3 4 5 6 7 8 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Jurisdictional Merits * Case year determined by date on which Ohio Supreme Court appeal was filed.

OACTA: Success Rate at Jurisdictional Stage

Success Rate: 58%

19 Outcomes 11 Successes

OACTA: Success Rate in Cases Decided on Merits

Success Rate 78%

65 Outcomes 51 Successes

OACTA: Participation by Area of Law

Personal Injury: 17 Trial Appellate Procedure: 16 Insurance Coverage: 15 Governmental Liability: 13 Medical Negligence: 5 Other: 12

OACTA: Amicus Solicitation Process

Defense Lawyer Amicus Author OACTA Board/ Officers Amicus Chair/ Co-Chair Defense Lawyer Ohio Supreme Court

Email/Phone Call Email Memorandum Amicus Brief Filed Coordination with Supported Party Retention Memo

Views from the Bench

What Judges and Clerks Notice About Amicus Briefs

• Government
• Public interest group
• Retired government
• fficial
• Law professor

Who filed it?

• The Solicitor

General’s office

• Prominent

practitioner

• Everyone else

Who wrote it?

• Unique perspective
• New information

Whether it offers new and helpful information?

What Judges and Clerks Want from Amicus Briefs

• Legal arguments not in the parties’

briefs

• Addresses matters that go beyond

the parties’ dispute

New

• Aids inadequately represented party
• Offers “legislative facts” not in the

record.

Helpful

What Judges and Clerks Want from Amicus Briefs (cont’d)

• Well-written briefs
• Short briefs
• Collaboration by amici

Representing a Supported Party: Soliciting Amicus Support

Soliciting Amicus Support

Case law

• Have amici participated in cases addressing similar

issues in the past?

Client

• Is your client a member of any professional
• rganizations or public interest groups that might

be interested in the outcome of the appeal?

Contacts

• Are you a member of any organization or group that

might be interested in the outcome of the appeal?

Soliciting Amicus Support (cont’d)

Jurisdictional stage

• Presence of amici highlights

the importance of an issue

• Identify organizations/groups

that will be able to show the impact of the issue on their interests

• Do not solicit amicus support

to oppose jurisdiction

Merits stage

• Identify amici with access to

“legislative facts” not in the record

• Identify amici who can speak

with authority to the development of the law in other jurisdictions

• Identify amici who can explain

practical problems generated by the decision below

Soliciting Amicus Support (cont’d)

Amici need time

Review and approve the brief Find an author Finish internal deliberations

Persuading an Amicus Curiae to File a Brief

 Identify as precisely as possible the issue you want them to address  Forward copies of the lower court’s decision and all briefing

• n that issue

 Write a summary of the decision that explains not just why you believe it to be wrong, but also how it affects the amicus curiae

Coordinating with Amici

• Keep amici apprised of all

deadlines

• Minimize duplication
• Ferret out inconsistencies among

amici, if possible

• Check draft briefs for factual

errors

Representing an Amicus Curiae: Help Your Client Help the Court

Representing an Amicus Curiae

• Figure out your client’s goal
• Determine when your brief is due
• Speak to counsel for the party

you are supporting

• Decide the type of amicus brief

you will write

Types of Amicus Merit Briefs

“Practical implications” brief “Go further” brief “More restrained” brief “Different legal argument” brief “Damage control” brief “Amplification” brief “Historical background” brief “Answer” brief

Writing the Amicus Brief Issue

• Make sure the supported party’s framing
• f the issue fits the brief you’re writing
• You don’t have to address every issue in

the appeal Statement of Interest

• Use to identify the effect on your client of

the decision below

• Particularly important in jurisdictional

amicus briefs

Writing the Amicus Brief (cont’d)

Statement of Facts

• Usually sufficient to adopt the supported

party’s statement of facts

• If you include such a statement, do so only to

highlight the facts critical to your argument Argument

• Brevity is important
• Use headings that serve as a summary of the

argument

• Do not focus on lower court decisions, unless

you are filing a jurisdictional brief and establishing that a conflict exists

The Role of Amici at Oral Argument

• OACTA rarely participates in oral argument and will ask for leave to do

so only in extraordinary circumstances.

Thanks for listening.

Any questions?