Tips on Inviting Law Professors to Write Amicus Briefs

A few thoughts for the appellate bar.

|The Volokh Conspiracy |

It's not uncommon for appellate lawyers to ask law professors to write amicus briefs in their cases. I get enough of these requests that I thought I would blog on some "do's" and "don'ts." My views are just mine, of course, but I suspect other professors generally share them.

(1) Remember that you're asking for a big favor. Writing an amicus brief is a big ask. Some lawyers act like law professors are sitting around in their offices just waiting for the amazing opportunity to write amicus briefs. But that's not true. Law professors get zero credit for writing amicus briefs, and they may have to pay the expenses of filing them out of their own pocket (possibly including the costs to join that particular bar and/or print the briefs). Most amicus briefs take a lot of time to write, and whether courts will pay any attention to any particular brief is at best uncertain. Given that, asking professors to write an amicus brief is basically asking them to take 40 or so hours of their personal free time, and perhaps their own money, volunteering to write something that may be totally ignored on the off-chance it may help you win your case. It's helpful to keep that in mind.

(2) Explain why the case matters. As your client's lawyer, you see your case as the most important thing in the world. But its broader significance probably isn't obvious to everyone else. When you ask a law professor to write an amicus brief, say why your case is important to the development of the law. What specific and important issue will it likely decide that the professor really cares about?

(3) Explain how the professor's contribution could be uniquely helpful. After explaining why the case is important, next explain why the professor's potential contribution might be particularly key. Explain what value the professor's brief might add. Some lawyers try a shotgun approach, in which they ask a lot of folks for help and see who might accept. But the more tailored the request, the more likely it is to work. You might say something like this: "You're the leading historian on the Eighth Amendment, and we think the history is really important to our case. But we can't get into the history in detail in our briefs without breaking the word limits."

(4) If you are working on the case pro bono, say so. This relates to Point 1. If you're asking for free help, it helps make the case if you're giving free help yourself.

(5) Make the initial request by e-mail. An e-mail explaining your case and asking for the professors's amicus help is the best way to make contact. You can leave a phone number in your e-mail, in case the professor wants to follow up by phone. But please don't try calling first. You'll probably end up wasting time playing phone tag. Phone calls aren't very efficient ways to communicate these sorts of things anyway. And if you leave a short voicemail and don't say what the call is about, the professor will think this is an important matter such as a reference for a former student and will be really annoyed to learn that you're just pitching an amicus brief. E-mail is faster and more convenient.

(6) Don't hide what the case is about in attachments to your e-mail. When you send your e-mail, remember that you're probably e-mailing professors who are not frequent correspondents with you. They may be reluctant to open attachments you send them (or to click on links you send them) for security reasons. Given that, it helps to make your pitch in the text of the e-mail rather than in an attached letter.

(7) Be polite and understanding if the professor says "no." This point is probably obvious in light of the points above. But I've had some lawyers express annoyance when I say that I'm not in a position to help them with an amicus brief. Don't be that lawyer.

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  1. So…you’re asking lawyers not to be jerks?

  2. What are the ethics on asking/getting a prof to write an amicus? I know there is some sort of certification on amicus briefs saying something like it’s the work solely of the amicus and they’re not getting paid. I would’ve thought getting involved at the specific behest of a party was a no-no, but I guess that’s not the case after all.

    1. You might find this article of interest:
      http://www.virginialawreview.o…..Online.pdf

  3. Among my first Internet interactions during the mid-90s were requests to do student’s homework for them. Apparently, they thought grad students were waiting for the email to come.

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