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Amicus Support and Shaping the Law

We regularly prepare amicus briefs to inform appellate courts about how their decisions will affect individuals and businesses who are not parties to the case. Our amicus briefs advance arguments to move or clarify the law in ways favorable to our clients, for example, by explaining how other jurisdictions handle similar issues more fairly or efficiently. On numerous occasions, appellate courts have directly adopted or approved the arguments advanced in our amicus briefs. (E.g., Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71; American Financial Services Ass’n v. City Of Oakland (2005) 34 Cal.4th 1239, 1256, 1259; Blue Ridge Ins. Co. v. Jacobsen (2001) 25 Cal.4th 489, 503.)

An effective amicus strategy may involve filing a single brief in a critically important case, or it may involve a comprehensive effort to shape the law as it develops through a series of related cases. For example, our briefs led the campaign, through multiple appeals to the California Supreme Court, to establish the constitutionality of legislation capping damages in medical injury cases, MICRA.

In addition to amicus briefs, our attorneys participate in other activities designed to shape the law. We have served on committees responsible for proposing amendments and revisions to the California Rules of Court. We have been active participants in the development of California’s model civil jury instructions (CACI), frequently proposing new instructions or changes to existing instructions, and regularly commenting on proposed changes that are circulated for public comment. Our attorneys serve on bar committees that evaluate candidates for appellate judgeships. We also monitor unpublished opinions and, in appropriate cases, submit nonparty requests for publication.

Above all, we recognize that an appeal can mean more than preserving or reversing a single judgment—an appeal can be a path to achieving a larger goal, like establishing a precedent that may have a dramatic effect on a business or an industry. We assist clients in analyzing the legal landscape in which they do business. Sometimes that involves carefully considering which issues should be raised, and before which court. Sometimes it means settling, or avoiding, cases that have the potential to create badlaw that will cause worse problems in the future than a single adverse judgment today. We stand ready to assist you in developing a long-term strategy to any legal issue you face.

Contact Steven Fleischman or H. Thomas Watson for more information about our Amicus Support and Shaping the Law practice.

Representative Briefs

  • Krakauer v. Dish Network, LLC (2018)

    Fourth Circuit amicus brief arguing that lawsuits cannot be certified for class treatment if the proposed class includes uninjured members and that class action judgments cannot afford relief to uninjured members.

  • Madrigal v. Allstate Indemnity Company (2016)

    Amicus curiae brief on behalf of insurance trade associations addressing whether an insurer can be held liable for bad faith under a “duty to settle” theory when the insurer offers policy limits within a reasonable period of time, even if shortly after an artificial deadline imposed by a third-party claimant.

  • Exxon Mobil Corp. v. State of New Hampshire (2016)

    United States Supreme Court brief arguing that the United States Constitution’s Due Process Clause prohibits Trial by Formula in state court representative actions.

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