Shadow Advocacy: A Look Inside the Amicus Process

By Eric Guttag
April 6, 2018

A September 1, 2014 on-line article by the New York Times had a very interesting title:  “Seeking Facts, Justices Settle for What Briefs Tell Them.”  What particularly caught my eye, as well as others in the legal world, was the following discussion at the beginning of this article:

“Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.  Others stood out.  They presented fresh, factual information that put the case in a broader context.  The justices are hungry for such data.  Their opinions are increasingly studded with citations of facts they learned from amicus briefs.  But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.  The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise, she wrote in an article to be published in The Virginia Law Review.”  [See Professor Allison Orr Larsen, “The Trouble with Amicus Facts,” Virginia Law Review, Vol. 100, pp. 1757-1818.]

Paying due homage to the TV series, The Twilight Zone, you have now entered the strange world of “shadow advocacy,” aka the amicus process.  Indeed amicus advocacy has taken on increasing importance in recent years in the IP law world generally, and in the patent law world specifically, as witnessed, for example, by the Mayo, Myriad, and Alice cases which reached as high as the U.S. Supreme Court (aka, SCOTUS), as well as Sequenom’s failed petition for certiorari which garnered almost two dozen separate amicus briefs in support, including two from organizations outside the U.S.

Shadow Advocacy: A Look Inside the Amicus ProcessBecause the stakes in this “shadow advocacy” world have never been higher, the amicus process has recently and unfortunately been turned sometimes into a “propaganda campaign” where briefs express not just viewpoints, but also try to influence the decision-makers, be they federal appellate judges or Supreme Court Justices, as to what those “facts” are.  Indeed, what this New York Times article expressly points out which is particularly alarming to me, as well as others in the legal field generally, and the IP law world specifically is that amicus briefs are now being used to present what is asserted to be “factual evidence.”  Shockingly, this so-called “factual evidence” is being accepted by some Supreme Court Justices (and apparently their law clerks) at face value.  Never mind that this supposed “factual evidence” has never been assessed or truly tested for its veracity, as well as being completely outside the official factual record in the case.  Indeed, far too much of this so-called “factual evidence,” often dressed up as “factual studies” whose methodologies have often been exposed as seriously flawed, are, in actuality, just propaganda disguised as “factual evidence.”  This factually-flawed propaganda is also being foisted by persons and organizations who not only have “hidden agendas,” but are also being paid and financially supported by “silent sponsors” (and some not so “silent sponsors”) of such propaganda.

With this New York Times article in mind, it is very important to understand how the amicus process does and should work, and especially how this process may be manipulated by some in ways that may be borderline appropriate (and even stray over the line to being inappropriate) without identifying what “flag” they are really “flying under.”  The legal term “amicus” means “friend of the court,” namely a non-party permitted to advise the court on the law directly affecting the case under consideration by that court.  See Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, 226 which describes the role of the amicus as follows:  “[T]o help the court by expounding on the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his/her behalf.”  (Emphasis added.)

That also means that those who are parties to the litigation cannot be amicus participants, but can and certainly will solicit amicus support.  (In regards to not being a party to the litigation, here is a representative statement that amici must make near the beginning of their amicus brief:  “Amici state that no counsel for a party authored any part of this brief, and no person or entity other than amici and their counsel made a monetary contribution to the preparation or submission of this brief.”  (Emphasis added.))  Indeed, amicus participants can be very helpful in fleshing out legal issues related to the particular litigation that the parties cannot and do not have time to address.  In addition, you don’t even have to be an attorney to be a participant in the amicus process.  In fact, many who aren’t lawyers can provide valuable insights to the courts on the legal issues before them.

In the interest of full disclosure, but more importantly to illustrate how one organization reviews and acts on such requests for amicus support, I’m currently the Chair of the Public Policy Legal Task Force (“Task Force”) of the Advocacy & Alliances Portfolio of the Association of University Technology Managers, aka AUTM.  (That’s a mouthful!)  In fact, prior to my involvement on this Task Force, I was actively involved for around a decade or so with the predecessor to AUTM’s Advocacy & Alliances Portfolio known as the Public Policy and Advocacy Committee.  My involvement with that Committee included being periodically asked to give my views and insights on amicus support requests to AUTM, including requests for AUTM to join amicus briefs.  Much of that prior involvement was on an ad hoc basis and without a standardized procedure for considering when (and when not) to recommend AUTM joining such amicus briefs.

That review process changed significantly when our Task Force was created about three years ago.  Our Task Force currently has around a dozen or so members who are extremely knowledgeable, dedicated, and responsive to reviewing such amicus requests, as well as proposed amicus briefs, often under severe time pressure.  What is not well understood by many about the amicus process is that the window of opportunity for considering such amicus requests, as well as preparing the respective amicus briefs is extremely narrow.  If we’re lucky, our Task Force may get a couple of weeks to review and act on a given amicus request.  More frequently, our Task Force will have a much more compressed time frame to not only consider the amicus request, but to also make a recommendation to the AUTM Board (or in even more time sensitive situations, to its Executive Committee) about whether or not to join the proposed amicus brief.  Our Task Force also often receives amicus requests which suggest AUTM prepare its own amicus brief which is normally beyond AUTM’s ability to do, and the requestor is so advised by our Task Force.

When I became the Chair of our Task Force, and especially to address this severe time pressure problem, my initial mission was to standardize the procedure by which such amicus requests were reviewed and handled by our Task Force so we could make timely and understandable recommendations to the AUTM Board as to which amicus briefs should be joined.  The old ad hoc procedure (if you could call it that) simply wouldn’t work for our Task Force.  That standardized procedure included creating a 1-page AUTM Amicus Request Form so that those making such amicus requests would know exactly what information our Task Force needed.  That information importantly includes:  (1) when the requestor needs to have an answer from AUTM on its request; and (2) by what date the proposed amicus brief needs to be filed.

Once we receive the filled out AUTM Amicus Request Form, the members of our Task Force are then asked to respond to two questions:  (1) does the case involve an issue of law of sufficient impact on university tech transfer that it would be consistent with AUTM’s policy on taking a position on a matter?; and (2) if the answer to question (1) is “yes,” should our Task Force recommend that AUTM join the proposed amicus brief?  (We also instruct our Task Force members to identify any potential “conflicts of interest” that might rule out their specific participation in reviewing a given request.)  Using Star Trek terminology, question (1) is what I refer to as our Task Force’s Prime Directive.  If the answer to question (1) is “no,” our Task Force can go no further other than to inform the requestor “thank you for your request, but we’re unable to recommend that AUTM join your proposed amicus brief.”

Responding to question (2) is more complex as it requires an assessment and judgment by our Task Force members of the value and potential impact of the amicus request, including whether that request:  (a) involves a sufficiently important/unique issue(s) of law as it relates to university tech transfer; (b) frames the issue(s) of law adequately; and (c) is based upon a factual record which is sufficiently free of dispute and/or ambiguity.  The importance of these three considerations, especially the factual record (c) being free of dispute/ambiguity, cannot be overemphasized.  In the early days of our Task Force, and before it put in place this standardized review procedure, I often became (by default) the initial “gatekeeper” for considering such requests for amicus support by AUTM.  A number of these requests I viewed as DOA (Dead on Arrival) because they failed to adequately address one or more of these three considerations:  (a) too many issues presented; (b) issues poorly framed or not of sufficient interest/uniqueness; and (c) factual records so murky and in dispute that the reviewing court and especially their law clerks would likely be unable to see the forest (i.e., the issue of law) for the trees (i.e., the factual dispute).  In this regard, those requesting amicus support need to consider very carefully the prospective audience they are addressing, which includes not just appellate judges/Supreme Justices, but even more importantly the respective law clerks for those appellate judges/ Supreme Justices.  Like how our Task Force operates for AUTM, these law clerks often serve the role of “gatekeepers” for which amicus briefs have value and especially those that don’t.

In conclusion, I trust I’ve given you at least a glimpse into this somewhat “shadowy” world of the amicus process from those, like our Task Force, who deal with it on a regular basis.  In particular, I hope I’ve made it abundantly clear why it’s important to understand what’s involved in amicus process, and especially what organizations, including AUTM and our Task Force, are looking for when asked to provide amicus support.

© 2018 Eric W. Guttag.  All views and opinions expressed herein are those of the author only.

 

The Author

Eric Guttag

Eric Guttag  
Mr. Guttag has over 38 years of corporate and private intellectual property law experience on patent, trademark, copyright, trade secret and unfair competition matters, computer and Internet law, including patent application drafting, prosecution, and patentability studies; infringement and validity studies; international patent prosecution; patent and know-how licensing; consulting, confidentiality, clinical study and research agreements; trademark searches and opinions; trademark registration and prosecution; trademark freedom-to-use studies and trademark litigation and dispute resolution.

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  1. Anon April 6, 2018 1:33 pm

    Comment lost – “page moved” message presented.

    Gene, can you check the filter?

    Thanks,

  2. Gene Quinn April 6, 2018 9:13 pm

    Anon-

    I don’t see anything in the spam or trash folders. I’m afraid the Internet ate your comment.