Amici Curiae Briefs in Arkansas Appeals: Rule 4-6 Explained

In this post, I discuss amici curiae briefs, what they are, and the influence they may possess within the Arkansas appellate process.

When working with appeals, it is not uncommon to see or hear the Latin phrase amicus curiae (plural: amici curiae). In highly charged court cases with significant implications for society at large, particularly those cases before the United States Supreme Court, references to amici curiae briefs—sometimes simply referenced as amicus briefs or friend of the court briefs—are common in the media.

Such briefs can be very influential. In Turner v. Rogers, 564 U.S. 431 (2011), for example, the United States Supreme Court based its decision, not on the arguments made by the parties to the case, but on an amicus brief. Understanding how amici curiae and amicus briefs work is therefore critical when dealing with appellate law.

Amici Curiae

An amicus curiae, or friend of the court, is someone who is not a party to the case and has not been solicited by any of the parties to the case to assist but who nonetheless seeks to offer information to the court.

An amicus curiae generally offers additional information to the court when the party believes that there may be broad implications of the court’s decision beyond the situation of the actual parties involved. An amicus curiae does this through the filing of an amicus brief.

Amicus Briefs in Arkansas

In Arkansas, Rule 4-6 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas governs amici curiae. In Arkansas, attorneys seeking to file such briefs may only do so with the permission of the Court.

Attorneys may seek permission to file an amicus brief by filing a motion for permission with the court stating the reasons why the brief is necessary. The court, however, is under no compulsion to grant the motion.

If the court does grant the motion, however, the filing party must still meet court deadlines. If the brief supports the appellant’s position or does not favor one party or the other, it must be filed with the court within the deadline set for the appellant brief. If the brief supports the position of the appellee, it is due at the same time as the appellee brief.

Even where permitted to file such a brief, however, amici curiae attorneys may not participate in oral arguments for the case, nor may they file a petition for a rehearing of the case in their own names. (It should be noted, however, that amici curiae attorneys may participate in a petition for rehearing with the permission of the attorneys that are parties to the case or by permission of the court to join in the motion or brief.)

What makes an amicus brief useful to a court?

A useful amicus brief gives the court something the parties have not — new data, an unrepresented perspective, practical consequences the parties have no incentive to brief, or specialized expertise. The United States Supreme Court says this expressly in its own rules:

"An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."
— Rule 37.1, Rules of the Supreme Court of the United States

That two-sentence standard is the practical test for any amicus filing, in any court: if the brief merely repeats a party’s arguments with a different letterhead, it burdens rather than helps. The briefs that move courts are the ones that fill a genuine gap — empirical studies the parties lack, industry-wide consequences, or the on-the-ground experience of those who must live under the rule being announced.

How does federal amicus practice compare with Arkansas?

The architecture is similar — permission-based filing, deadlines keyed to the party supported — but the details differ in ways that matter to practitioners:

Timing. In the U.S. Supreme Court, a merits-stage amicus brief is due within 7 days after the brief of the party it supports (Rule 37.3(a)). Arkansas Rule 4-6 instead ties the amicus deadline to the same due date as the supported party’s brief — a meaningfully earlier deadline in practice, since the amicus cannot first read the supported party’s filed brief.
Government amici. The Supreme Court exempts the Solicitor General, federal agencies, state attorneys general, and authorized city or county law officers from seeking leave to file (Rule 37.4). Arkansas Rule 4-6 contains no equivalent automatic right; everyone asks permission.
Disclosure. Supreme Court Rule 37.6 requires every non-governmental amicus to disclose whether a party’s counsel authored the brief in whole or in part and who funded it — a transparency rule aimed at preventing parties from smuggling in extra briefing through friendly amici.

How influential are amicus briefs in practice?

More than their “friend of the court” label suggests. In Turner v. Rogers, 564 U.S. 431 (2011), the example discussed above, the Supreme Court resolved the case on the analytical framework proposed by the United States as amicus curiae — a set of alternative procedural safeguards for civil-contempt defendants that neither party had placed at the center of its briefing. At the certiorari stage, an amicus brief can be even more consequential: a well-aimed brief explaining why a case’s question matters beyond the parties is often the difference between a granted and denied petition. In a state appellate system like Arkansas’s, where amicus filings are rarer, a thoughtful friend-of-the-court brief from a trade association, advocacy organization, or government office can stand out precisely because the court sees so few of them.