1.3 Alternatives and Complements to Litigation
All options for obtaining relief, instead of or in conjunction with litigation, should be considered and used where appropriate. To the extent that the problem can be resolved without litigation, it should be. Litigation can often be more expensive in time and cost than alternatives. Thus, the use of alternatives to litigation may mean that more clients are served and more problems are solved. These non-litigation strategies can also be used in conjunction with litigation, either sequentially or simultaneously.
A multi-pronged approach to problem solving was employed in the case presented in the Documentary Supplement, Lightfoot v. District of Columbia. Lightfoot involves a challenge to the policies by which the disability compensation benefits of injured D.C. city employees are reduced, suspended or terminated. One of the co-counsel in the federal litigation, the D.C. Employment Justice Center, founded a group called the Injured Worker Advocates. A center attorney who was not involved in the federal litigation supported this group. The Injured Worker Advocates is a group of former city workers who have banded together to protest and press reform of the manner in which injured municipal employees are treated in the District.
The Injured Worker Advocates used public rallies and other forms of publicity to increase membership and build support for legislation that center lawyers drafted for city council consideration. Using legislative advocacy, the Injured Worker Advocates and center persuaded the city council to hold a hearing on the disability compensation program. Many Injured Worker Advocates group members testified at the hearing, which coincided with the legislative process required to confirm the director of the relevant agency to his post. Their stories, as well as victories in court, led to the dismissal of the director and important new legislative reforms. Subsequently, the center and others submitted public comments on proposed rules to implement the new legislation. At the same time, the litigation in the District Court surfaced facts and favorable judicial opinions that supported the need for legislative reform and were designed to furnish both prospective and retroactive relief to class members.
3.A. Administrative Advocacy
Administrative advocacy can be formal or informal./15/ Even when administrative proceedings are not required prior to litigation, they may be available. For instance, a fair housing claim may be filed either in court or with HUD. Your choice will be determined by the speed at which you seek relief, the HUD administration and its record, and the type of discovery and fact investigation that you wish to conduct. Many attorneys have successfully used the HUD administrative procedure for informal discovery and obtaining conciliation agreements. On the other hand, many HUD complaints have languished for years.
In addition to having quasi-judicial procedures for enforcement of a statute, such as through HUD, HHS, or the Equal Employment Opportunity Commission, many agencies have procedures for filing administrative complaints. Under some statutes, the administrative process is a necessary prerequisite to filing in court. If you do not timely file administratively, your client may lose your opportunity to pursue litigation. In addition to formal administrative processes that may involve investigation, conciliation, hearings and administrative appeals, other kinds of administrative advocacy are available. For instance, in addition to due process hearings, some attorneys have had success in special education cases using their state’s complaint process or making a complaint to the Office for Civil Rights in the U.S. Department of Education. You can also engage in administrative and federal rule making, including requesting a rulemaking or commenting on proposed regulations, and administrative declaratory judgment proceedings./16/
Administrative advocacy can be informal. You can contact agency personnel and their supervisors, up to the agency head or attorney or general counsel. You can call agency contacts who have agreed with your position or are at least open-minded, to see if they are willing to take official or unofficial action. A local administrator is often surprisingly amenable to changing a local practice if the local agency knows that its federal or state oversight agency is supportive of the change. Of course, your local agency may be stubborn. In that case, you can count your informal administrative advocacy as informal discovery of the oversight agency’s position. Keep careful records of your conversations and commit the agency’s position to writing when possible.
Many local court rules require the attorney to attempt to settle the matter before commencing litigation./17/ When time is of the essence, you may wish to attach a draft complaint to your demand letter and set for the defendant a fixed period of time for response. As with any other correspondence with the defendant, or defendant’s counsel, this correspondence may wind up before the court during the substantive portion of the case or during a fee motion. Bear this in mind any time you write about your case to the opposing party.
3.B. Legislative Advocacy
One informal strategy is to contact, or have your client contact, the relevant legislative representative./18/ Even if the office does nothing more than forward the request to the pertinent agency, the request may receive attention that it otherwise would not. Congressional requests may be color-coded and given the highest priority.
The emphasis on federal litigation may cause us to forget that a remedy may lie within the state legislative process. In some cases, relief from a state legislature may exceed that which may be obtained in court, and, therefore, a state legislature may be a superior forum. If you are challenging a state law as illegal under a federal law or regulation, you may appeal directly to the state legislature to change the law, perhaps with the help of a friendly legislator familiar with your organization or cause. If the state’s interest is in the practical administration of a shared state-federal program, or in the efficient working of state and local government, you may be able to advocate a change in the state law to bring it into compliance.
Legislative reform is beyond the scope of this discussion. Yet, as many courts become more hostile to our clients’ claims, the legislative process should not be ignored. In general, success in the legislative arena depends on knowing the players and in being part of a larger coalition pressing for change. An excellent example of an area in which legal aid attorneys have had legislative success is in the passage of state legislation protecting low-income homeowners from predatory lending practices.
3.C. Press and Media
Newspapers and other media are useful in several ways. First, publicity and articles can get your message out and shape public opinion. This is especially useful if you need public opinion to support your lobbying efforts or to encourage the public to take a particular action. Second, an article or story can reflect public opinion and bolster your moral standing or provide a margin of comfort for a judge who might otherwise be afraid to issue a novel order. Third, the news reporting can serve as another source of fact finding and can force your adversaries to pin down their position as they are quoted. Fourth, readers of an article may bring further evidence or potential plaintiffs to your attention./19/
When you approach the media, you must do so with an understanding of the way the media operates. In most cases the reporter is interested in the general public interest of the story. Very few local reporters have the resources for true investigative reporting. The press release may form the core of the story and may represent all that the reporter knows about the issue. Commonly, the reporter will call you and your adversary for a quote. You should have a quote prepared, and you should understand that the reporter will listen to your articulate explanation and may use the one sentence you wish you never said. You can start the conversation by saying that you would like to give some information on background and then indicate when you want to be quoted, but such control is not always granted or honored.
If you are going to use the media, or are forced by your adversary into doing so, create a message that will be understandable and persuasive to your audience. A radio or television interview is not the time to talk about motions to dismiss and burdens of proof. It is the time to talk in sound bites, just as when you were first formulating the solution to your client’s problem.
If you work at it, you may be able to develop a relationship with a reporter who is interested in your story. You will be able to give background information to the reporter, and the reporter may be willing to share information obtained during an interview or investigation. Do not be lulled, however, into thinking that the reporter is on your side or your friend. You may find your confessions and doubts incorporated into a future article.
In general, you can contact the media in three ways. You can simply call the city desk, relevant beat reporter, or a reporter with whom you have a relationship. You can issue a press release that conforms to the format used in your community. You can call a press conference by issuing a press release or making direct calls and inviting the media to appear at a particular time and place. You can often attract a lot of attention in this manner, despite the short attention span of the media. The press conference should be planned with as much care as an oral argument; include the sound bites you want aired and be prepared for challenging questions.
A spokesperson who is a client or group representative makes the story more immediate. An attorney as the spokesperson can project a level of seriousness, knowledge, and intent. Often a combination of both works best. Prepare the client and practice, just as you would for testimony.
You can also approach the editorial board of the newspaper to solicit a favorable editorial. Ask to arrange a meeting with the editorial board or representative where you will have an opportunity to present your story and argue your position. Even if you do not obtain a favorable editorial, the off-the-record remarks and feedback you obtain from the editorial board can serve as a useful barometer of community response. The newspaper may be interested in publication of an Op-Ed piece that will get the matter before the public. And even when this is not possible, shorter letters to the editor may be published.
To insure internal control of your media strategy, you should have a clear understanding within your office, litigation team, and with your client as to how media inquiries will be handled. In general, one attorney in your office should be the point of contact with the media for the case, and that attorney should know and understand the media strategy for the litigation. Your agreement with your client as to how media inquiries will be handled should be in the retainer.
3.D. Community Education
Community education is one of the most important undertakings of a legal services attorney./20/ In most circumstances it will also be an adjunct to litigation. Community education may be particularly necessary when you are trying to locate plaintiffs or witnesses or when you want to test the capacity of a public system. For instance, before commencing litigation to challenge the failure of a paratransit system to comply with the Americans with Disabilities Act, the attorneys and the organizational client educated potential riders of their rights, surveyed people with disabilities about their experiences with the system, and obtained data about noncompliance as a result. Community education can be especially useful after you have settled or won the case to let people know about the new resources available or the new rules that will apply to them. You can include community education as part of your settlement or request for relief.
When you engage in community education, be sensitive to the forms and levels of communication best understood and appreciated by your target audience and their spoken languages. Always consider alternate formats, such as large print, tape, and Braille for people with visual impairments, and the availability of interpreters when conducting outreach and community presentations. You may also want to develop materials targeted at social service providers who work with the audience you are trying to reach, both to ensure they can advise clients of their options and rights, and so they can recognize problems and refer clients who are in need of representation to your office.
3.E. Direct Action and Community Development Work
Direct action can refer to two different approaches to obtaining your desired solution. First, you can simply fix or coordinate the fixing of the problem. For instance, the defendant in a lawsuit initiated by her town to declare her house an imminent health hazard and to raze it contacted a legal services lawyer. Legally, the attorney could have raised procedural defenses or counterclaims relating to the client’s disability. Instead, the lawyer contacted a local community group that, working with a local church, sent a team of people and a dumpster to the house. The volunteer team cleared out years of debris, cleared out the rats, and performed some emergency repairs. The only legal work the attorney had to do was to negotiate for additional time and be present in court when the town withdrew its case.
Direct action may also mean mobilizing a group of people to apply pressure to the government or other entity to obtain a specific result./21/ Disability groups have engaged in direct action, often in conjunction with litigation, to obtain accessible transportation or access to public buildings. Direct action in your case might occur on a smaller scale. It may be as simple as turning out a crowd at a public hearing or in the courtroom. It may be a sit-in at the welfare office to protest a new rule or at a local restaurant to obtain an accessible restroom. In most cases combining direct action with a media strategy is useful.
Community development work involves the use of public and community resources to obtain the desired results. It can refer specifically to becoming involved in your town, city, or state’s process for allocation of federal and state community development dollars. It can also mean working with a local not-for-profit or for-profit development company to create housing, job opportunities, or other community enhancements.
3.F. Amicus Participation
One alternative to the substantial investment of time and resources required for the preparation, initiation, and prosecution of direct litigation on behalf of your clients is to participate, selectively and strategically, in pending lawsuits involving other parties that have raised the same or similar issues.
3.F.1. The Amicus Curiae
Through the vehicle of the amicus curiae—the “friend of the court”—legal aid attorneys can vigorously represent their clients’ interests, often in the context of precedent-setting decisions, without formally initiating, or intervening in, the underlying litigation. Amicus participation thus affords attorneys, while avoiding most of the resource constraints imposed by conventional litigation, the opportunity to influence directly and immediately the outcome of cases that may dramatically affect their clients’ lives.
Unlike their counterparts in many other public interest law organizations, legal aid advocates do not routinely participate as amici in cases involving other parties. However, given the modern expanded role of the amicus curiae in federal litigation/22/ and the increasing success of amicus arguments presented by a wide variety of interest groups, including conservative public interest organizations,/23/ legal aid advocates should more fully utilize this effective (and efficient) alternative to direct litigation./24/
3.F.2. Role of the Amicus
Historically, the amicus was a disinterested judicial advisor called upon only in rare or unique circumstances, sometimes offering a mechanism for the articulation of third-party interests not otherwise before the court./25/ Its original role “was to provide impartial information on matters of law about which there was doubt, especially in matters of public interest.”/26/ Over time, the role of the amicus curiae evolved to encompass overt advocacy on behalf of the amicus organization’s legal position, and modern amici invariably provide active support for one or more parties to the litigation./27/ Indeed, under current federal rules, an amicus seeking leave to participate in a case must articulate its specific interest in the litigation, identify the party that it intends to support, and (in the U.S. Supreme Court) disclose certain relationships which may exist between the amicus and the parties to the case./28/
3.F.3. The Amicus Brief
Typically, an amicus simply submits a brief in support of its legal position. Under the federal appellate rules, such briefs may be filed “only if accompanied by written consent of all parties, or by leave of court granted on motion, or at the request of the court.”/29/ Generally an amicus who is unable to obtain the requisite consent will file a motion for leave to file its brief and at the same time “conditionally file” the brief itself—a procedure permitted under Rule 29./30/ The motion must identify the “interest of the applicant,” and the brief should be filed (or conditionally filed) within the same time allowed for the party whose position the amicus supports./31/
A similar procedure governs amicus participation in the Supreme Court and is set forth in Supreme Court Rule 37. Although Rule 37.2 states that motions for leave to file an amicus brief after the parties refuse to consent are “disfavored,” in practice the Court currently grants “nearly all” motions for leave to file an amicus brief, even when consent is denied by a party./32/
No express provision in the Federal Rules of Civil Procedure applies to amicus advocacy in the district courts. However, those courts might well look for guidance to Federal Rule of Appellate Procedure 29, and an amicus seeking to be heard in the district court should follow the process set forth in Rule 29./33/
Content of the Brief. An amicus brief can serve a variety of functions. It can target a specific weakness in a party’s argument, develop variations on the arguments made by the parties, and present emotive or otherwise “risky” arguments that a party cannot or should not address./34/ Often an amicus brief can serve as an important factual supplement to the record or furnish relevant technical data or background information not otherwise available to the court./35/
The influence of amicus advocacy upon court decisions is quite difficult to measure in objective terms./36/ However, many organizations that regularly appear as amici point to “the frequent citation of amicus briefs in Justice’s opinions” as support for the commonsense inference that “the [U.S. Supreme] Court often finds such briefs helpful.”/37/ For example, it is widely believed that the Court’s 2003 decision upholding the consideration of racial diversity in a law school admissions policy was significantly influenced by the numerous amici briefs filed in support of the program by “major American businesses” and “high ranking retired officers and civilian leaders of the United States military,” all attesting to the importance of “exposure to widely diverse people, cultures, ideas, and viewpoints.”/38/
New Issues or Arguments. Often an amicus may seek to argue a legal theory or raise a legal issue that the parties themselves have not argued or raised. As a rule, courts are reluctant to permit an amicus “to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.”/39/ This principle is merely a corollary to the more basic jurisprudential prohibition against the consideration of issues that are not argued in the lower court/40/ or raised in the appellant’s opening brief./41/ However, courts often exercise their discretion to rule upon new issues raised by amici:
- when “the issue is purely one of law and either does not affect or rely upon the factual record developed by the parties”/42/ or
- where “exceptional circumstances” warrant consideration of the argument./43/
Courts will find such “exceptional circumstances”
- when the issue presents “a significant question of general impact,”/44/
- where the issue implicates “substantial public interest,”/45/ or
- where failure to consider the issue would cause an “unduly harsh” result./46/
Furthermore, since the federal courts have an independent and continuing obligation to resolve jurisdictional questions, even when not raised by the parties, an amicus who presents such issues may in fact be “welcomed.”/47/
Consistent with these principles, the Supreme Court has sometimes expressly refused to consider issues raised solely by an amicus./48/ However, the Court periodically deviates from this general rule and bases its decision on an argument presented only in an amicus brief./49/ Hence, amici organizations and their counsel should not be deterred from offering new issues or theories for the Court’s consideration.
An amicus (or any other party on appeal) who offers new legal theories or alternative legal grounds in support of the lower court’s judgment will benefit from the “settled rule” that holds “if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”/50/ Thus a reviewing court “may affirm on any ground supported by the record even if it differs from the reasoning of the district court.”/51/ An amicus who argues in support of the lower court’s disposition therefore should be accorded greater latitude in presenting new or alternative claims on appeal.
Reply Briefs and Oral Argument. The Supreme Court prohibits the filing of amicus reply briefs./52/ Other federal courts have adopted the same rule./53/ However, an amicus that has been permitted to file a brief in connection with a petition for certiorari or other discretionary review (e.g., a rehearing or rehearing en banc in the court of appeals) certainly may seek to participate in the briefing on the merits if review is granted./54/
Both the Supreme Court and federal appellate rules provide that a motion by an amicus to participate in oral argument will be granted only for “extraordinary” reasons, particularly where the party whose position the amicus supports does not consent to share its allotted argument time./55/ However, in significant cases the courts of appeals are probably more likely than the Supreme Court to permit argument by an amicus, and the allied parties to the litigation are more likely to share their argument time./56/
3.F.4. Advantages and Disadvantages of Amicus Participation
Many traditional public interest law organizations have long favored amicus participation as a resource-efficient way to concentrate their advocacy upon cases which appear poised for a precedent-setting decision in order to obtain the most direct and immediate impact for their constituents. Direct litigation may consume years of time and expenses with no guarantees that the outcome, even if favorable, will establish any lasting precedent.
However, the limited role of the amicus curiae places significant constraints upon the use of the amicus vehicle as a strategic option, and legal aid advocates must always consider whether direct initiation of litigation (or formal intervention in pending litigation) better serves their clients’ interests. For example, because amici lack formal party status, it is now well settled that an amicus may not, on its own: appeal a lower court judgment; seek rehearing or other discretionary review; broaden the scope of the remedy or seek relief not requested by the parties; or (generally) obtain attorney fees and costs./57/ Advocates who become aware of significant cases at the trial level should consider whether intervention in the litigation is the most appropriate means to protect their clients’ interests, particularly if no current party to the litigation apparently is motivated to protect those interests, or to appeal an adverse judgment./58/
3.F.5. Practical Considerations
Watchful legal aid advocates will discover significant opportunities to advance their clients’ interests in the context of litigation between other parties. Legal aid attorneys successfully have provided a voice for their clients through amicus appearances in important cases involving bankruptcy, consumer protection, civil rights, housing, and social security issues./59/ Counsel who seek to participate as amici in appropriate litigation should collaborate as closely as possible with the party to be supported in order to coordinate briefing and argument strategy. All amicus advocacy should be done, with appropriate retainer agreements, on behalf of a current client or clients who have a stake in the outcome of the case at issue. Often the actual “amicus” is an organization or association with goals or missions relevant to the issues being litigated, and the legal services advocate serves as counsel to the amicus organization./60/ Where the legal services organization itself carries credibility with the court, it may appear as amicus in its own right./61/
Advocates who are attuned to the possibilities of amicus participation may realize some significant corollary benefits for their general practice. Regular monitoring of other cases raising issues of significance to clients will certainly increase awareness of the opportunity (or perhaps the necessity) for advocacy on those issues in a variety of forums. Amicus participation also can be a catalyst for greater networking and collaborative efforts with advocates in both the private and public interest sector. Counsel who regularly consider the opportunities and possibilities of amicus advocacy also will be more likely to obtain an advantage in their own litigation by inviting the participation of influential organizations and allies to serve as their clients’ amici in appropriate cases.
15. Some administrative action, however, may have preclusive effect. See Chapter 3, Section III, of this Manual.
16. See 45 C.F.R. § 1612 (restrictions on legislative and administrative rule-making activities).
17. LSC regulations also require certain procedures to be followed with respect to prelitigation negotiation and the filing of litigation. 45 C.F.R. §§ 1636, 1644.
18. Restricted programs are expressly permitted to “advise the client of the client’s right to communicate directly with an elected official.” 45 C.F.R. § 1612.5(c)(6).
19. For further advice on the use of media, see Patricia Bath, Elizabeth Arledge and Joe Surkiewicz, Using the Media, 39 Clearinghouse Review 458 (Nov.-Dec. 2005).
20. LSC-funded attorneys may not conduct or support training that advocates a specific public policy. 45 C.F.R. § 1612.8.
21. LSC regulations prohibit attorneys in LSC-funded programs from grassroots lobbying, 45 C.F.R. § 1612.4, engaging in inter alia public demonstrations or civil disturbances during working hours, 45 C.F.R. § 1612.7, or organizing, 45 C.F.R. § 1612.9.
22. See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743 (2000).
23. Kenneth Jost, The Amicus Industry: Conservatives Catch Up with Liberals in Getting the Attention of the Supreme Court, California Lawyer, Oct. 2001, at 40.
24. For an extensive discussion of the role of the amicus curiae, and for examples of its application to legal services advocacy, see Gary E Smith & Beth E. Terrell, The Amicus Curiae: A Powerful Friend for Poverty Law Advocates, 29 Clearinghouse Review 772 (Nov.-Dec. 1995).
25. Samuel Krislov, The Amicus Curiae Brief From Friendship to Advocacy, 72 Yale L. J. 694, 696-97 (1963).
26. United States v. State of Michigan, 940 F.2d 143,164 (6th Cir. 1991). A few courts are still reluctant to depart from this “orthodox” formulation and allow amici only a “very limited adversary” role through briefing or oral argument or both. Id. at 165.
27. See Krislov, supra note 25, at 695-96; Funbus Systems Inc. v. California Public Utilities Commission, 801 F.2d 1120, 1125 (9th Cir. 1986) (partisan advocacy by amici is “perfectly permissible”).
28. See S. Ct. R. 37; Fed. R. App. P. 29. In 1997 the Supreme Court added a provision requiring all amicus briefs to disclose (1) whether counsel for a party authored any part of the brief and (2) every person or entity, other than the amicus and its counsel, that made a monetary contribution toward the preparation of the brief. S. Ct. R. 37.6.
29. Fed. R. App. P. 29.
32. Kearney & Merrill, supra note 22, at 760. As a result, parties represented by experienced lawyers in the Supreme Court rarely refuse consent for leave to file an amicus brief. Id.
33. See United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D. N.Y. 1991) (denying leave to file an amicus brief after consideration of the Rule 29 factors).
34. See Krislov, supra n. 25, at 711.
35. These are sometimes called “Brandeis briefs,” after a famous turn-of-the century filing by future Supreme Court Justice Louis Brandeis, who urged support of a law limiting women workers to ten hours per day by packing his brief with sociological data about the negative effect of excessive hours on workers’ health. Muller v. Oregon, 208 U.S. 412 (1908).
36. For an extensive empirical analysis of the influence of amicus briefs upon Supreme Court decisions, see Kearney & Merrill, supra note 22, at 828-30.
37. Id. at 745 (Court made reference to an amicus brief in nearly 30 percent of decisions, in cases where at least one amicus brief was filed, over a fifty-year period).
38. Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003) (specifically citing numerous amici briefs in support of the affirmative action policy).
39. Lane v. First National Bank, 871 F.2d 175 (1st Cir. 1989). See also Riverkeeper, Inc. v. Collins, 359 F.3d 156, 163 (2nd Cir. 2004); Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994).
40. See, e.g., Service Employees Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir. 1994); McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir. 1991).
41. E.g., Continental Insurance Co. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 985 (8th Cir. 1988) (en banc); Preservation Coalition Inc. v. Pierce, 667 F.2d 851, 861-62 (9th Cir. 1982); Consumers Union v. Federal Power Commission, 510 F.2d 656, 662 n.9 (D.C. Cir. 1974).
42. Hamilton v. Madigan, 961 F.2d 838, 841 n.6 (9th Cir. 1992).
43. Resident Council of Allen Partway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1049 (5th Cir. 1993); Preservation Coalition, 667 F.2d at 862. Courts also will consider whether all parties have had a fair opportunity to brief the issue. Continental Insurance, 842 F.2d at 985.
44. Service Employees Union, 35 F.3d at 487.
45. Continental Insurance, 842 F.2d at 985; Consumers Union, 510 F.2d at 662; Platis v. United States, 409 F.2d 1009, 1012 (10th Cir. 1969).
46. Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n.l (9th Cir. 1970).
47. Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994); General Engineering Corp. v. Virgin Islands Water and Power Authority, 805 F.2d 88, 92 n.5 (3d Cir. 1986); American Meat Institute v. Environmental Protection Authority, 526 F.2d 442, 449 (7th Cir. 1975) (court “required” to consider jurisdictional issues raised by amici).
48. See, e.g., United Parcel Service Inc. v. Mitchell, 451 U.S. 56, 60, n.2 (1981).
49. See, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion); see also Kearney & Merrill, supra note 22, at 745, n.5 (collecting cases).
50. Helvering v. Gowran, 302 U.S. 238, 245 (1937) (emphasis added).
51. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994); see also DELTA v. Humane Society, 50 F.3d 710, 712 (9th Cir. 1995).
52. S. Ct. R. 27.3.
53. See, e.g., Ninth Cir. R. 29-1.
54. See, e.g., Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc) (legal services advocate permitted to file amicus brief on the merits and to participate in oral argument after filing brief in support of successful petition for rehearing en banc).
55. S. Ct. R. 28.7; Fed. R. App. P. 29.
56. The Supreme Court does not favor “divided argument,” S. Ct. R. 28.4, and counsel for the parties in cases before the Court rarely agree to share their argument time with amici. See Smith & Terrell, supra note 24, at 780.
57. Smith & Terrell, supra note 24, at 783-87.
59. Id. at 787 & n.152 (listing examples).
61. Id. Counsel should of course obtain approval of the board of directors before formally involving the legal services organization itself in any litigation. LSC-funded attorneys may not participate as amici in class action litigation. 45 C.F.R. § 1617.
Updated 2006