A reflection on the changes to the rules governing the filing of amicus curiae briefs in the United States Supreme Court.

Each new year typically comes with slight changes to the rules of appellate procedure, and 2023 was no exception. This year, the Supreme Court rolled out new rules for parties who file amicus curiae briefs. Thankfully, the changes made it much easier to be friends with the Golden Girls (and Boys) on the Court.

The requirements for filing amicus briefs are found in Supreme Court Rule 37. The changes to the rule deal with the requirements for filing amicus briefs before the Court’s consideration of a petition for writ of certiorari (i.e. cert stage briefs), and the rules for filing amicus briefs filed after cert has been granted but before oral argument (i.e. merits briefs). See Rules 37.2 & 37.3.

Appellate courts have broad power when it comes to judicial notice, and that power is comprised of two types of matters: mandatory and discretionary. In the first part of this two-part post, I discussed matters that an appellate court must judicially notice. (See Judicial Notice on Appeal: Mandatory Subject Matter, Appellate Insight, October 2021.) This post will discuss those matters that an appellate court may judicially notice.

Judicial notice is a powerful tool for litigants to get factual matter in front of a court without a sponsoring witness or all the other burdensome requirements under the rules of evidence. If used properly, facts that are beyond dispute and other universally known facts can be firmly established in the case so that the parties can focus on triable issues that must be resolved by a judge or a jury.

For example, in a burglary case, a trial court may take judicial notice of when the sun set on a certain date in order to conclude whether or not a burglary was committed in the nighttime. (E.g. People v. Helm (1957) 156 Cal.App.2d 343, 344 [analyzing prior Penal Code § 460].) The court can judicially notice that the burglary was committed in the nighttime based on the indisputable fact that the sun set before the burglary—thereby allowing the parties to focus on other disputed facts at trial.

There are a handful of legal doctrines that can be difficult to comprehend, but the law of the case doctrine shouldn’t be one of them. Yet, time and again, the doctrine seems to perplex litigants, especially when deciding whether it is binding or discretionary, and whether it has any application to a trial court’s own prior rulings. The answers to both of these questions are important to understand before asking a court to revisit a prior ruling.

The basic rule is this: a ruling or holding stated in an appellate court opinion is binding on all inferior courts in all subsequent proceedings related to the same parties in the same action. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)

The line between zealous advocacy and ethical conduct can sometimes become blurry to the advocate seeking to vindicate the client’s cause. And this includes appellate advocacy, not just trial work. Fortunately, the Rules of Professional Conduct inform counsel that ethical duties actually demarcate the boundaries that might otherwise be overlooked. And one of those duties is to disclose adverse authority to the courts, not simply to ignore it.

It’s been a little over a year since attorneys practicing in California were introduced to Rules of Professional Conduct, rule 3.3 “Candor Toward the Tribunal.” In simple terms, the rule requires lawyers to be truthful when addressing a court. But beyond that, subdivision (a)(2) imposes an affirmative duty on lawyers to disclose any law that is “directly adverse” to their client’s position: