ONCE rare, amicus curiae or ‘‘friend of the court’’ briefs are now filed in the majority of appellate cases heard by the United States Supreme Court and various state supreme courts.

In the United States Supreme Court, amicus briefs were filed in thirty-five percent of the Court’s cases in the 1965– 66 term; by 1995, one or more amicus briefs were filed in nearly ninety percent of the Court’s cases. An analysis of the 1999 to 2008 terms showed that in civil cases the average filing rate for amicus briefs was 92.4% (with a high of 100% amicus participation in all civil cases in the 2007 term). The number of civil cases before the Court each term ranged from thirtynine to sixty-one; the total number of amicus briefs filed each term in those cases ranged from 344 to 627.

‘‘Historically, state courts were more likely than the U.S[.] Supreme Court to limit the role of amicus participation in appeals.’’ Nonetheless, the number of amicus briefs filed in state high courts tripled in the 1980s. The growth in use of amicus briefs has not been uniform across all states, however. The frequency of amicus participation between 1960 and 2000 was highest, according to one study, before the Florida, Massachusetts, North Carolina and Washington high courts; two previous studies revealed the top five states for amicus participation to be California, Michigan, New Jersey, New York, and Ohio.

Originally published in the Defense Counsel Journal - January 2014.