July 29, 2010

Getting review with a little help from your friends

In the last few years, the U.S. Supreme Court has seen a remarkable increase in the number of amicus briefs filed in support of petitions for certiorari, an increase that mirrors a similar rise in merits stage amicus briefing. As noted in this article, “[i]n the 73 cases that were granted and decided last term by signed opinions, a total of 74 amicus curiae briefs were filed before review or certiorari was granted, up from 66 the previous term and 44 the term before that.” The article suggests that cert stage amicus briefs are increasingly necessary to having your client’s case heard on the merits.

One might expect the same to be true of amicus letters filed in support of petitions for review in the California Supreme Court. As Horvitz & Levy partner M.C. Sungaila pointed out in a recent Daily Journal article, the number of merits-stage amicus briefs filed in the California Supreme Court is substantial and may be on the rise in recent years: “The amicus filing rate was 59.7 percent from 2000 to 2009 in civil cases: out of 707 civil cases decided by the court, 422 had one or more amicus briefs.” Unfortunately, there is no easy way to track the number of letters filed in support of petitions for review, because although the California Supreme Court accepts such letters, it does not treat them as “filings” and does not list them on the docket. But it stands to reason that, as in the U.S. Supreme Court, the submissions in support of review has likewise been going up. That being the case, to maximize the chances that your client will be among the fortunate few whose cases are selected for merits briefing, it makes sense to get a little help from your friends.

Of course, even a slew of amicus letters in support of a petition for review provides no guarantee that the court will grant review. Last week the Supreme Court denied review in Franklin Mint v. Manatt Phelps & Phillips LLP despite 19 amicus letters in support of the petition, including letters from all corners of the bar: law professors, bar associations, public interest organizations, large law firms, plaintiffs’ firms, non-profit advocacy groups, and prominent lawyers. Justice Moreno provided the lone vote for review.

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