Richard A. Posner has little use for most friend-of-the-court briefs.
“The problem is that, very often, they’re duplicative of the briefs of one of the parties,” the 7th U.S. Circuit Court of Appeals judge said in an interview.
“It’s just extra reading.”
But an amicus curiae brief can attract the attention of a judge like Posner if the writer presents facts not mentioned by the parties or if he or she has a different interest or approaches the issues from a different perspective than that of the parties.
One of the more than 30 amicus briefs that poured into the 7th Circuit in the run-up to arguments in August over same-sex marriage proved to be helpful to Posner.
During the arguments, he asked a lawyer defending gay marriage bans if he had read the brief Bryan, Cave LLP filed on behalf of the Family Equality Council.
The brief, Posner said, “has a great deal of rather harrowing information about the problems” bans in Indiana and Wisconsin created for same-sex couples and their children.
None of the Bryan, Cave lawyers who submitted the brief supporting marriage equality were in the courtroom at the time.
But news that their work had been cited spread quickly.
“‘Surprise’ is an understatement,” Bryan, Cave associate Lauren J. Caisman said.
It’s no wonder Posner’s reference to the brief drafted by Caisman and her fellow lawyers, S. Patrick McKey and Donald A. Cole, was unexpected.
The U.S. Supreme Court routinely grants motions to file amicus briefs and often draws on information in those briefs in crafting its rulings.
But it’s a different story at the 7th Circuit, Bruce E. Braverman, then-counsel at Sidley, Austin LLP, wrote in the July 2012 edition of the Illinois Bar Journal.
The appeals court, he wrote, once granted motions to file amicus briefs as a matter of course.
But since the mid-1990s, he continued, the court has “considerably restricted the ability of potential amici to be heard.”
The 7th Circuit granted leave to file amicus briefs in only six of the cases it decided in 2010, Braverman discovered.
Federal Rule of Appellate Procedure 29(a) allows non-parties to file amicus briefs with the consent of the parties in a case or by leave of the appeals court.
Rule 29(b) says a motion for leave to file should state “the reason why an amicus brief is desirable.”
In 2003, Posner explained why he was denying two motions to file amicus briefs in a dispute over telecommunications law. Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542 (7th Cir. 2003).
Amicus briefs are supposed to help judges “by presenting ideas, arguments, theories, insights, facts or data that are not to be found in the parties’ briefs,” Posner wrote.
But since taking the appellate bench two decades earlier, he wrote, he had rarely seen an amicus brief “do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting.”
Eleven years later, Posner came across an amicus brief he apparently believed did more than repeat a party’s arguments.
The Family Equality Council brief contains “horrible stuff” about the adverse impact of same-sex marriage bans, Posner said during arguments Aug. 26.
“So they tell all these bad stories about the misfortunes of the kids whose same-sex parents can’t marry,” he said. “And what’s on the other side of the scale? What’s outweighing these costs?”
Posner and the other judges on the panel, Ann Claire Williams and David F. Hamilton, clearly weren’t impressed with the answers they got from lawyers defending the bans.
Nine days after hearing arguments, the panel deemed the bans unconstitutional. Marilyn Rae Baskin, et al. v. Penny Bogan, et al., Nos. 14-2386, 14-2387 and 14-2388, and Virginia Wolf, et al. v. Scott Walker, et al., No. 14-2526.
The Family Equality Council, like the other amici in the case, filed its brief in the case with the parties’ permission.
Based in Boston, the council represents parents who are lesbian, gay, bisexual or transgender and their children. The council says there are 3 million LGBT parents in the U.S., and they have a total of 6 million children.
One of the affinity groups at Bryan, Cave — LGBT Lawyers — formed a pro bono relationship with the Family Equality Council in 2009.
Caroline S. Soodek said LGBT Lawyers sought out an advocacy group that didn’t already have a relationship with a law firm.
“We wanted to be able to sort of wrap around them and provide holistic services to them,” said Soodek, a counsel at the firm who serves as outside general counsel to several companies.
Because of the recession, Soodek said, those services included everything except money. But Bryan, Cave has provided $1 million worth of legal services to the council, she said.
The firm, Soodek said, “literally mapped the laws and regulations that would have to be changed” to achieve full equality for LGBT families across the country.
The firm began filing amicus briefs on behalf of the council in cases challenging laws and regulations that deny rights to families, Soodek said.
McKey, a partner at the firm, said there was a simple reason he and his fellow lawyers took up the council’s fight against the Indiana and Wisconsin bans.
“From our perspective, it’s just the right thing to do,” he said. “It’s getting ahead of the curve.”
And he said the arguments in favor of marriage equality “clearly resonated with Judge Posner,” who wrote the opinion for the panel.
Caisman took the lead in writing the brief. Cole, an associate, concentrated on research and also served as a sounding board for Caisman.
They didn’t work alone. They got input from Bryan, Cave lawyers in Chicago as well as other cities.
“This was truly a collective effort,” Cole said.
Caisman said writing the brief as an amicus rather than a party was difficult.
“It was tough to not respond directly to the states’ legal arguments,” she said, “but we really wanted to spotlight our clients’ stories and let their voices speak for themselves.”
McKey said Posner heard those voices. The judge, he said, “is on the right side of history.”
For Bryan, Cave, the Family Equality Council was both a teammate and a client.
“We absolutely came together as two organizations in a marriage,” Soodek said.