The Volokh Conspiracy

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Always Glad to Get Pro Bono Court-Appointed Amicus Work

This may be especially helpful in cases involving sealing or pseudonymity, where the parties agree with each other but the public interest ought to be represented.

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A UCLA First Amendment Amicus Brief Clinic student and I were just appointed by a District Court as amicus to file a brief supporting the right of public access and opposing sealing of certain documents. The parties had both agreed to sealing, but "courts are duty-bound to protect public access to judicial proceedings and records," even as to "stipulated sealings … where the parties agree." And appointing an amicus curiae to represent the no-sealing position will help give the court an adversary presentation on the matter.

It seems to me that this sort of appointment is win-win-win:

  1. The court gets arguments from both sides, which it can then impartially consider. (The court may of course end up disagreeing with our position.) I've litigated over 30 motions related to sealing in courts throughout the country, so I can make sure that the arguments are well researched and presented.
  2. The public's presumptive right of access to court records is protected.
  3. My student gets an opportunity to brief a real motion under my supervision, and argue it in court. (Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we have funding for travel costs, so none of this requires spending court funds.)

Of course, the parties who want the documents sealed may end up not winning; but, again, they aren't legally entitled to sealing just as a matter of mutual agreement.

In any event, I just wanted to flag this in case some other courts will find it helpful—we're always happy to help with such appointments. More broadly, we would be able to help:

  • with briefs opposing sealing,
  • with briefs opposing pseudonymity, and
  • with briefs (usually in appellate courts) defending the decision below on any First Amendment or First-Amendment-related question, when the appellee isn't appearing (we're doing that now in a Ninth Circuit trademark law case) or when the appellant and appellee both disagree with the decision below,
  • in state or federal courts,
  • trial or appellate,
  • throughout the country (we'll get local counsel if needed).

We'd also in principle be open to being appointed to support sealing or pseudonymity as well, for instance if a party is pro se and hasn't been able to effectively present the legal arguments but the court would like to see a knowledgeable presentation on that side. Whatever my views might be about the propriety of sealing or pseudonymity in any particular case, as a lawyer I'd be glad to provide the court with the best arguments for whatever position needs to be covered, and I'm sure my students would as well.

If you think we can be of help, please e-mail me at volokh@law.ucla.edu.

NEXT: My Boston Globe op ed on What the Supreme Court Should do in the Harvard and UNC Affirmative Action Cases

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  1. How much do you get to see of the sealed documents when arguing for their unsealing?

    1. John F. Carr: Good question -- in most of my cases, I don't get to see anything that isn't broadly public; but when I'm court-appointed, the court may allow my student and me to see the sealed information, of course on condition that we respect the sealing order just as the parties do.

      1. If that's the case, wouldn't a boiler plate argument against sealing do the job?

        How would the argument be different in different cases if the relevant documents can't be viewed?

        1. Most cases in which I've opposed sealing aren't completely sealed. Usually there's enough to craft a sensible argument that's focused on the facts of the particular case (though indeed sometimes I've had to speak more generally, or more based on conjecture, than I'd have liked).

  2. This is fantastic, I will definitely keep this in mind.

  3. Does it become an issue that someone who reads this site, and might be a fan, appoints an author here to represent a side? Is that same person the judge who will hear the case?
    I don't see that necessarily being a problem but I had never given a thought as to how this type of appointment happens.

    1. Judges often appoint lawyers they know in such situations; the highest-profile examples are Supreme Court Justices appointing their former law clerks to represent the judgment below (for more, see Katherine Shaw, Friends of the Court: Evaluating the Supreme Court's Amicus Invitations, pp. 1556-58). But judges of course often have lawyers whom they know arguing before them -- and that often includes lawyers they know socially and not just professionally. That's generally not seen as posing an undue risk of bias, unless the judge and the lawyer are extraordinarily close.

      Indeed, if anything the risk of bias would be less for a court-appointed amicus, because there are fewer economic repercussions for such amici if they lose -- they don't have to worry about their clients being angry at them, or about losing a contingency fee. And while lawyers like to win, we learn to take defeat in stride; you can't win 'em all. I'm sure that judges who know me well would still be perfectly fine with ruling against me if they disagree with my position (as they should be), and even if they appointed me to argue it. C'est la guerre.

      1. Thank you all for your answers. It's why I like this site, ample opportunity to learn.

    2. Legal ethics (and the subset thereof for judges) isn't some sort of anti-contagion regime in which people who know and respect each other must pretend each other don't exist.

      What Prof. Volohk is doing, and offering to do, is a genuine service to bench, bar, and public. I commend him and his students for it.

      1. I've seen Perry Mason more than once appointed by judges who admired his work.

  4. Would you say that appointment of an amicus is a reliable predictor of which way a judge is leaning or will rule, or does it tend to indicate nothing?

    1. Not a reliable predictor at all, though I suppose it tends to be something of a signal that the judge thinks that it isn't an open-and-shut question.

  5. The lawyer representing the anonymous party would violate his duty of loyalty to his client by asking the court to appoint Prof. Volokh and his student to file a brief urging the court to require the lawyer representing the anonymous party to identify his client.

    1. Of course -- such appointments generally happens on the court's own initiative (as the one that prompted this post did).

  6. "Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we have funding for travel costs,"

    Is travel often required for these motions? Lately, most federal courts I have been in entertain motions by phone or Zoom (if they have oral argument at all.) But my universe of courts is probably much more limited.

    1. Depends -- many have indeed been by Zoom, and I like that just fine. But especially for a student's first oral argument, I expect in-person presence makes for a better learning experience.

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