graphic for Atlantic Legal Foundation Amicus Curiae Program web page depicting US Supreme Court

A Solution In Search of a Problem?

Commentary by Lawrence Ebner, ALF Executive Vice President & General Counsel

I am a steadfast advocate for keeping junk science out of courtrooms—for federal judges fulfilling their expert testimony gatekeeper role under Federal Rule of Evidence 702. But should Rule 702’s reliability criteria, which are traceable to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), formally apply to amicus briefs that contain scientific or technical information? The answer is yes according to a recent law review article authored by David DeMatteo and Kellie Wiltsie of Drexel University, When Amicus Curiae Briefs are Inimicus Curiae Briefs: Amicus Curiae Briefs and the Bypassing of Admissibility Standards, 72 Am. U. L. Rev. 1871 (2023). I am not persuaded by this scholarly article that, as a practical matter, subjecting Supreme Court or federal court of appeals amicus briefs to Rule 702 scrutiny as a condition for filing and/or acceptance is either necessary or workable.

According to the article:

The use of amicus curiae briefs raises a significant concern given the documented persuasiveness of expert evidence on legal decision-makers and the absence of any meaningful checks on the accuracy of the expert information, particularly scientific and technical information, included in these briefs. Specifically, amicus curiae briefs that include expert information are not subject to the rigorous admissibility standards that govern expert evidence offered at trial, despite considerable empirical support for the proposition that amicus curiae briefs can be highly persuasive in the decision-making of the U.S. Supreme Court (and other courts). As previously noted, we believe that amicus curiae briefs that include inaccurate, misleading, or mischaracterized expert information can perhaps be better described as inimicus curiae briefs because they are not functioning as a friend of the court.

Id. at 1208.

The article is correct, of course, that an amicus brief is not a friend of the court if it contains misleading or inaccurate scientific or technical information. But the article contains scant evidence that the filing of what the authors call inimicus curiae (enemy of the court) briefs is prevalent enough to be what they view as a “significant concern.” See id. at 1908-09. Instead, the article merely assumes that because some of the large number of amicus briefs filed in appellate courts (on a broad variety of subjects) influence judicial decisions, the subset of amicus briefs discussing scientific or technical information (and the even smaller number that contain misleading or inaccurate information) represents a problem needing a solution.

The solution apparently preferred by the article’s authors appears to be imposition of a new requirement in the Supreme Court Rules and/or Federal Rules of Appellate Procedure:

Requiring the following of amici would provide a measure of quality control that would permit courts to have more confidence in the expert information included in amicus curiae briefs: (a) identify the sources of any data included in the brief (i.e., include citations), (b) include only publicly available and preferably peer-reviewed data, (c) describe the scientific methods used to obtain the data, (d) describe whether the methods used to obtain the data and the resulting scientific findings are generally accepted in the relevant field (i.e., provide field-specific context for the science and findings), (e) disclose any ghostwriting, and (f) disclose any funding sources for the studies described in the amicus curiae brief (or for the brief itself). Such a transparent approach would be consistent with the heightened requirements for experts outlined in FRE 702 and the rigorous admissibility standard for expert evidence articulated by the Supreme Court in Daubert.

Id. at 1915.

When drafting an amicus brief that presents or discusses scientific or technical information, amicus counsel can enhance the brief’s credibility and persuasiveness by demonstrating, in a variety of ways, that the information is reliable. The article’s suggestion, however, that filing an amicus brief containing scientific or technical information in the Supreme Court or circuit courts of appeals should require leave of court, and that leave should be granted only if the brief’s content satisfies Rule 702/Daubert-like reliability criteria, see id. at 1909-15, is unnecessary, would create a burden on appellate courts, and probably is unworkable. Such a requirement also would be contrary to the Supreme Court’s recent elimination, as unnecessarily burdensome, of the previous requirement to obtain consent or leave to file an amicus brief. At the court of appeals level, it would transform routine requests for consent to file an amicus brief—a perfunctory process that does not, and should not, involve sharing a draft of the brief to the non-supported party—into adversarial motions practice where the non-supported party would be able to object to the filing of an amicus brief based on its content.

The DeMatteo/Wiltsie article includes useful information about the growth and influence of amicus briefs in general, but fails to convince me that there is a need to adopt special rules for filing amicus briefs containing scientific or technical information.

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