Judge Scudder’s Tips for Writing an Amicus Brief that Adds Value

October 12, 2020 5:03 PM | Carson Griffis (Administrator)

By:  Linda Sackey

In Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644, 2020 WL 5867923 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers), Circuit Judge Michael Y. Scudder wrote a short and informative opinion on a topic that is of great interest to many appellate practitioners: how to write an amicus brief that assists the court in evaluating a case.

Judge Scudder observed that many amicus briefs do nothing more than rehash arguments that the parties have made. He notes that “[n]obody benefits from a copycat amicus brief,” and the court’s practice is to reject such briefs. Rather, Judge Scudder emphasized that an amicus brief should add something new, different, and important to the court’s consideration of the issues.

Among Judge Scudder’s suggestions for helpful avenues to pursue in an amicus brief are:

• Offering a different analytical approach to the legal issues before the court;

• Highlighting factual, historical, or legal nuance glossed over by the parties;

• Explaining the broader regulatory or commercial context in which a question comes to the court;

• Providing practical perspectives on the consequences of potential outcomes;

• Relaying views on legal questions by employing the tools of social science;

• Supplying empirical data informing one or another question implicated by an appeal;

• Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;

• Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.

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