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Spring 2008OACTA Quarterly Review20
Introduction
Preparing an effective
amicus curiae
brief is a unique challenge. You’re not aparty to the case, you probably won’t get to explain yourself in an oral argument,and the judges or justices don’t have toconsider or even read your brief if theydon’t want to.Because they are so different from everything else we file,
amicus
briefs involve special considerations as you seek toget the Court’s attention, be a “friend” to the Court as the“amicus” name suggests, and still effectively advocate onbehalf of your client.This article will first review in detail the proceduralrequirements for filing an amicus curiae
 
brief with theSupreme Court of Ohio. Then, we will consider the reasonsfor filing an amicus brief, and what you can do to make yourbrief useful and persuasive to the Court. To inform mydiscussion of what makes for effective amicus advocacybefore the Court, I went to the people who would know best: the justices who presently sit on that Court. Four of them —Chief Justice Thomas J. Moyer, Justice Evelyn Lundberg Stratton, Justice Maureen O’Connor, and Justice Judith AnnLanzinger — shared their thoughts with me on what theyhave found useful and not-so-useful in amicus briefs during  their time on the bench.
1
The Procedure of Amicus Practice
The Rules of Practice of the Supreme Court of Ohio allowfilings from an
amicus curiae
at numerous stages of theproceedings. In no event is leave of Court necessary to fileas an amicus — making the Ohio Supreme Court moreliberal in this respect than the federal appellate courts and the Ohio appellate courts, which require either permissionfrom the parties or leave from the court for amicusparticipation.
See
U.S. Supreme Court R. 37; Fed. R. App. P.29; Ohio App. R. 17.
Jurisdictional Memoranda.
 An amicus may file a jurisdictional memorandum urging the Court to accept, ordecline to accept, a claimed appeal as of right or adiscretionary appeal. Such a memorandum is required toconform to the requirements for jurisdictional memorandagenerally, except that the amicus need not attach the Courtof Appeals opinion and judgment entry to its memorandum.S. Ct. Prac. R. III, Section 5(A). An
amicus
supporting theappellant must file its memorandum in support of  jurisdiction by the appellant’s deadline for perfecting anappeal, or by the appellant’s deadline for filing amemorandum in support of jurisdiction, whichever comeslater. An amicus memorandum in response to a party’smemorandum in support of jurisdiction must be filed by theappellee’s deadline for doing the same. S. Ct. Prac. R. III,Section 5(B).
Merits Brief.
 An amicus may file a brief supporting theappellant, appellee, or neither. Amicus briefs must conform to the rules for merits briefs generally, except that an amicusbrief need not include the appendix that the parties arerequired to file. S. Ct. Prac. R. VI, Section 6(A). An amicusbrief’s cover must identify the party on whose behalf it issubmitted, or indicate that it does not expressly support theposition of any party.An amicus brief in support of an appellant is subject to thesame filing deadline as the appellant’s brief; an amicus mayalso file a reply brief by the appellant’s due date for filing areply brief. Similarly, an amicus brief in support of anappellee is subject to the same deadline as the appellee’sbrief. S. Ct. Prac. R. VI, Section 6(B). Note, however, that if you want to support the appellee, you need to pay attention to when the appellant actually files its brief. If the appellantfiles before its deadline, your time to file a response (30days under S. Ct. Prac. R. VI, Section 3(A)) begins to run at that time. And if you fail to file timely, the Clerk’s office willrefuse to accept your amicus brief. S. Ct. Prac. R. VI, Section6(B).A brief that is not in support of either party has the samedeadline as the appellee’s brief. Counsel filing a brief not insupport of either party should make sure that the brief doesnot appear to favor the appellant; if it does and it is filed
 Amicus Advocacy Before the Supreme Court of Ohio
By J.H. Huebert, Esq.Porter Wright Morris & Arthur LLP
 
21
past the appellant’s filing deadline, the Court may strike thebrief, as it did in
State ex rel. Wellington v. Kobly 
, 112 OhioSt. 3d 195, 2006-Ohio-6571, 858 N.E.2d 798, ¶ 13.
Oral argument.
 An amicus may participate in oralargument on the merits where two conditions are met: (1) the Court grants leave, and (2) counsel for the side whom the
amicus
supports consents to relinquish some of its timefor argument to the
amicus
. S. Ct. Prac. R. IX, Section 6(A). Amotion for leave must be filed at least seven days beforeoral argument is scheduled. S. Ct. Prac. R. IX, Section 6(B).S. Ct. Prac. R. IX, Section 6(A), provides that an
amicus
mayalso seek leave from the Court to participate in oralargument, but “such leave will be granted only in the mostextraordinary circumstances.” This should not provideencouragement to counsel who really want to argue: no justice I spoke to for this article could either remember orimagine circumstances so extraordinary that an amicuswould be given time above and beyond the parties’ time.The key to arguing (if you must) is to get the relevant party togive you some of its time.Circumstances may arise where the Court grants leave for aparty to allot some of its time to an amicus — but then atargument the party uses both its own and the amicus’s timeresponding to questions from the bench. In such cases, I am told, the Court is likely to grant the amicus at least oneminute of argument anyway, because the time was allottedand it is hardly the amicus’s fault that the bench questionedcounsel so much. (On the other hand, I have it on goodauthority that where counsel for the party is not being questioned actively, it is the party’s counsel’s responsibility to timely finish so the amicus can have its time.)
Motions for reconsideration.
The Rules expressly bar anamicus from filing a motion for reconsideration, but if a partydoes so, an amicus may file a memorandum in support of such a motion within the time permitted for filing thatmotion. S. Ct. Prac. R. XI, Section 2(C). An amicus may file amemorandum opposing a motion for reconsideration within ten days of the filing of the motion. Rule XI, Section 3(B).(For more on motions for reconsideration, see the article bymy colleague Brad Hughes, “For Your Reconsideration,”elsewhere in this issue.)
Certification from federal court.
 Where a federal courtcertifies questions of state law to the Ohio Supreme Courtfor resolution, an amicus curiae may file a memorandumsupporting either party — suggesting which certifiedquestions the Court should or should not address — within twenty days after the certification order is filed with the OhioSupreme Court, subject to the same requirements that theparties must follow. S. Ct. Prac. R. XVIII, Section 6.
 Service on the parties.
 “When a party or an amicuscuriae
 
files any document with the Clerk . . . that party or
amicus curiae
shall also serve a copy of the document on allparties to the case.” S. Ct. Prac. R. XIV, Section 2(A)(1).Failure to do so may result in the brief being stricken. RuleXIV, Section 2(D)(1). The wording of the Rule — whichdistinguishes between a party and an amicus — implies thatit is
not
necessary to serve other amici. (It might becourteous to do so, but it may not be the best use of resources, given that all of the briefs are available on theCourt’s website very soon after filing; plus you may not evenknow who your fellow amici are until after you have filed.)
 Why Write an Amicus Brief?
We have covered how and when you can participate as anamicus. But why write an amicus brief at all? Presumablybecause there is an issue before the Court that is important to your client. But of course there are parties alreadyinvolved in the litigation — who may have been battling foryears before you even became aware of the case — and theywill be filing briefs. What is the point in spending your ownresources doing something that other people are already taking care of at their own expense?There are several reasons why you might choose to becomea “friend of the court.”
The parties might not do the job well enough.
 For one,it is possible that the party that you support will simply notdo a good enough job of briefing the issues. As we haveseen, your brief is due on the same date as the merit brief of  the party you are supporting, so you may not get a chance toactually see how good of a job the party’s counsel is doing unless they file early or, as is sometimes the case, you are incommunication with them and they share a draft. But evenif you do not get an early look at the party’s brief, you mayknow the reputation of the attorneys for the parties, and youcan look at the briefs from the lower courts to determine theC
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Spring 2008OACTA Quarterly Review22
likely quality and substance of their Supreme Court briefs. Yes, you might file a brief as an amicus that addresses the
 same issues
and just
does a better job
 than the parties. Infact, Justice Maureen O’Connor indicated to me that this isone of the foremost reasons to write an amicus brief, whichcan be very helpful to the Court when it is faced with partieswhose counsel are, for whatever reason, not quite up to the task. Justice O’Connor suggests that your very first stepshould be to consider what the other parties have done, andsee where either side falls short. Then you will see where there may be an opening to make yourself useful. (Again, though, you will have to either find out from looking at what the parties did below or communicating with the relevantparty as to what they
will
file because you share their filing deadline.)On the other hand, as discussed further below, the worst thing you could do in an amicus brief is to merely repeatwhat others have said. So if you want to make the sameargument as a party, you need to be sure that you willprovide a product that is noticeably, significantly superior. Inany event, the key is to
distinguish
yourself as an amicus.
To let the Court know how its decision will affectnon-parties.
 One would hope that the parties will do their job on the merits well enough that they do not need you tocome do it for them in an amicus brief.Even if the parties do a serviceable job in the legalarguments, though, another important function you canserve as an amicus is to give the Court a broaderperspective of the potential impact of their decision than theparties offer. Chief Justice Moyer and Justice Strattonemphasized to me that the parties to an appeal can get soinvolved in the details of their case that they focus tightly on their own narrow issue and “fail to see the forest for the trees.” This invokes what Justice Stratton calls the “law of unintended consequences,” according to which the Court’sdecision may end up having unforeseen effects that theCourt did not think about because no one brought them toits attention. Amicus briefs, therefore, can place parties’issues in better context to help the Court understand thepotential ramifications of a decision.
To make public-policy arguments.
Of course, it is verycommon for parties to file an amicus brief essentially tomake a public policy argument in support of a desiredoutcome.At today’s Ohio Supreme Court,
beware this approach.
Several members of the Court made clear to me that theywill not
 
be swayed by public-policy arguments that theybelieve should be made to the legislature, not the courts.Justice Stratton emphasized that “today the [Ohio Supreme]Court does not want to make social policy decisions.”Instead, the Court “exercises judicial restraint and defers to the legislature on social policy.” She adds that this is not tosay that some, more “activist” courts could find public-policyarguments to be useful, but generally “not in the OhioSupreme Court today.”In many settings, being passionate for one’s viewpoint wouldbe an advantage, but Justice O’Connor says that when “thepassion with which the brief was written” comes through in abrief, this is a strong signal that the brief may not offeranything of value. It will not do, she says, to simply how“unjust” it would be for some individual or group of individuals for the Court to resolve the case in a certain way— the Court needs to know why the
law 
, not the facts,demand a particular outcome.That said, Justice Stratton did see some place for policydiscussions by amici, not to urge the Court to “enact a policyagenda,” but instead to give the court more context — “tosee why a law was passed, what the legislature intended.”Another possibility — not suggested by the justices I spoke to, but which seems to have had some success — is to cite to policy considerations that are embodied in the OhioConstitution. Consider the recent
Norwood v. Horney 
, 110Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, inwhich the Ohio Supreme Court held that the OhioConstitution’s protection of private property rights is greater than that of the U.S. Constitution as explained in thenotorious decision in
Kelo v. City of New London
, 545 U.S.469 (2005). In
Norwood
, the Court discussed at greatlength Ohio’s strong public policy — embodied in itsConstitution and even
preceding 
 the Constitution — insupport of private property rights. 2006-Ohio-3799, at ¶¶34-38.Thus, to the extent advocates want their public-policy
of 00

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