Too many 'friends': appeals judge urges limits on amicus briefs.

Judge Richard Posner is looking for a few true friends of the court.

In a recent ruling denying a request by the Chicago Board of Trade to file an amicus curiae brief, the chief judge of the Seventh Circuit said he believed most amicus briefs merely restate the arguments of the parties and do not aid courts in resolving cases.

Noting that "the term 'amicus curiae' means friend of the court, not friend of the party," Posner said many briefs have become adversarial and repetitive and should not be allowed.

"After 16 years of reading amicus curiae briefs, the vast majority of which have not assisted the judges, l have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion," Posner wrote. (Ryan v. Commodity Futures Trading Commission, No. 97-2120, 1997 WL 572412 (7th Cir. Sept. 16, 1997).)

The offending brief by the Board of Trade, arguing that one of the board's members should not have been disciplined by the Commodity Futures Trading Commission, claimed the board could aid the court by "expressing its strongly held view" that the evidence did not support the commission's sanction.

"We are not helped by an amicus curiae's expression of a 'strongly held view' about the weight of the evidence," Posner said, "but by being pointed to considerations germane to our decision of the appeal that the parties for one reason or another have not brought to our attention." The brief did not do that, he said.

Washington, D.C., lawyer Marc Fiedler, cochair of ATLA's Amicus Curiae Committee, said courts should "welcome rather than spurn" briefs by interested parties. "Some amicus briefs are more helpful than others, but that should go to their weight, rather than their admissibility, so to speak," Fiedler said.

He added that restrictions on amicus submissions would likely hurt plaintiffs more than defendants, who generally have more resources to bring to litigation. "Amicus participation by brief-writing experts helps level the playing field," he said.

He suggested that stricter court rules might help solve the problem of amicus-brief overload. In the District of Columbia Circuit, for example, rules expressly prohibit briefs from repeating facts or legal arguments made in the parties' briefs. Other circuits have less explicit rules about what a brief may or may not contain, Fiedler said.

Although Posner urged judges to "bar the gates" to unhelpful amicus briefs, he said briefs should be allowed when a party is not represented adequately, when the amicus is involved in another case that would be affected by the decision, or when the amicus brief has "unique information or perspective" not provided by the parties.