Policy for Reviewing Amicus Requests

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Revised November 24, 2003 by the NDRN Legal Committee

NDRN is frequently asked to sign onto or file amicus briefs in support of a party. One of the duties of the NDRN Legal Committee is to recommend to the NDRN Board whether NDRN should sign onto or file an amicus brief.

A. Amicus Requests

• When NDRN is requested to sign onto an amicus brief, the organization making the request must provide the Legal Committee with the following written information:

• the issues on appeal;
• a statement outlining the facts of the case;
• a brief discussion of the case=s procedural history (including which court the brief will be filed in);
• the arguments that the brief will make;
• why the case is important to people with disabilities;
• the name and number of a contact person;
• whether the amicus brief will be a coalitional effort and if so, what other organizations are being approached to sign onto the brief; and
• what organizations may oppose the arguments being made in the brief.

The organization must also provide a hard copy of the decision being appealed and any briefs already filed. In some instances, the organization may also be asked to make a brief presentation during the regularly scheduled Legal Committee conference call.

• When NDRN is requested to draft a brief or find a pro bono attorney to draft the brief on behalf of NDRN as lead amicus, the organization making the request must provide the information outlined above, except that, instead of (A)(1)(d), the organization must outline the arguments that it would like NDRN to make in the brief.

• The Legal Committee must have adequate time to review the request to participate as amicus. When NDRN is asked to write a brief or find a pro bono attorney to write the brief, NDRN will require more time to review the request than when it is being asked to sign onto a brief authored by another organization.

• In the case where NDRN is asked to sign onto a brief written by another organization, a minimum of 30 days notice prior to the brief being due is requested.

• In the case where NDRN is asked to draft a brief, a minimum of 60 days notice prior to the brief being due is requested.

B. Initial Legal Committee Consideration of Amicus Requests

• The Legal Committee may take the following actions with respect to an amicus request:

• Based on the criteria set forth in (B)(1)(b) below, the Legal Committee may decline to participate as amicus in the case.

• The Legal Committee shall consider the following factors when deciding whether to review a draft of an amicus brief for sign-on purposes:

• Whether the issue is compatible with the NDRN mission statement
  
• Whether the issue has precedential value and affects clients served by Protection and Advocacy Systems or Client Assistance Program
  
• Whether the filing of the brief has an impact on the decision the court will reach and/or may enhance the likelihood of winning.
  
• Whether the filing of the brief would provide a perspective or information that is not already in the main appellate brief.
  
• Whether the Legal Committee has sufficient resources to review the request.
  
• Whether the Legal Committee members, or their designees, have subject matter expertise in the area we are being asked to support.
  
• Whether the brief to be filed in the Supreme Court of the United States, the Circuit Courts of Appeal or the highest court in a state.
  
• Is the brief an amicus brief in support of a cert petition to the US Supreme Court? If so, NDRN should not review the brief unless the case has a direct and substantial impact on P&A work.

• The Legal Committee may recommend to NDRN staff to write an amicus brief or find a pro bono attorney to author an amicus brief on behalf of NDRN with respect to a particular issue affecting the clients served by Protection and Advocacy Systems or Client Assistance Programs, if, in addition to all of the criteria in (B)(1)(b) above, there is no other civil rights or disability organization drafting an amicus brief on that particular issue.

C. Legal Committee Review and Recommendation Process

• If the Legal Committee -- or, if time does not permit, NDRN staff and the Legal Committee chair -- determines that the brief is one in which NDRN would be interested in participating as amicus, the Legal Committee Chair shall assign at least two Legal Committee members to review the brief.
  
• Legal Committee reviewers must have adequate time to review the brief and provide comments concerning the substance of the brief. If a brief is being filed with the U.S. Supreme Court and/or is drafted by a pro bono lawyer on behalf of NDRN as the primary amicus, NDRN reviewers must receive a draft of the brief at least ten (10) days before production of the brief is completed. For all other briefs, a minimum of five (5) days prior to the brief being due is requested. If the drafters are not going to be able to meet the five-day requirement, NDRN’ Amici Coordinator will :
  
  • Try to obtain an outline, talking points, or whatever draft is available at that time so that reviewers have sufficient time to make substantive comments before the filing deadline.
    
  • Contact the individual reviewers to see if they can review the brief in an expedited time period. If they cannot, NDRN will NOT sign onto the amicus brief.
    
• NDRN Staff will send each reviewer the brief and the information contained in (A)(1) above. The reviewer will be responsible for completing the form that the Committee has adopted for making amicus recommendations and returning it to NDRN staff.
  
• Legal Committee reviewers shall make a recommendation to the NDRN President, acting as chair of the Executive Committee, concerning whether NDRN should sign onto/file the brief.
  
• Reviewers may NOT recommend that NDRN sign onto/file an amicus brief unless the following two minimal requirements are met:
  
• The brief should accurately portray the state of the law .
  
• The brief should use people-first language .
  
• Reviewers should consider the following factors in determining whether they recommend that NDRN should sign onto/file a brief :
  
• Whether the logic and argument in the brief is coherent ;
  
• Whether the writer demonstrates a basic level of legal professionalism (grammar, blue book, etc.); and ,
  
• Whether the brief adds anything new to the argument being made by the parties.
  
• Even if the three factors in (C)(4)(b) above are not met, reviewers should consider whether it is important for NDRN to sign onto the brief for coalitional purposes.
   
• If reviewers recommend against signing onto/filing the brief, NDRN staff will inform the requestor in writing that NDRN has decided not to sign onto the amicus brief and no further action shall be taken.
  
• If reviewers recommend that NDRN sign onto/file the brief, NDRN staff shall convey that recommendation to the NDRN President, acting or Chair of the Executive Committee, NDRN staff may request approval of the NDRN President contingent on the approval of the two assigned reviewers.
  
• If Legal Committee members disagree as to whether NDRN should sign onto/file an amicus brief, the Legal Committee Chair shall assign a third reviewer to make a recommendation. If two of the three reviewers recommend that NDRN signs on to/file the brief, NDRN staff shall convey that recommendation to the NDRN President.

• The President of NDRN, or his/her designee, must approve NDRN participation as amicus signing onto or filing an amicus brief.