Supreme Court Rule 37.2 discusses the requirements for filing an amicus curiae brief at the petition stage. Merits-stage amicus curiae briefs are covered in Rule 37.3. One important distinction between petition- and merits-stage amicus curiae brief filings is that petition-stage amici must give the parties notice of their intention to file at least ten days before the amicus curiae brief due date.
While the notice requirement is separate from the obligation to obtain the parties’ consent, experienced filers combine their efforts to satisfy both rule elements. Amicus counsel should send their correspondence asking for consent at least ten days before the due date. That way, regardless of whether or not a party grants consent, the amicus curiae brief filer will be able to demonstrate timely notice.
Like a merits filing, a petition-stage amicus curiae brief must have a Footnote 1 on the first page. And the Footnote should include a statement about consents, and timely notice. Unless a party’s blanket consent is entered on the docket, the written consent documents should be filed with the brief (though not bound-in to the booklet).
The amicus curiae brief filer does not need to supply separate documentation of appropriate notice. In fact, nothing in the Rule requires that the notice be given in writing. A simple telephone call would satisfy the notice requirement. But the petition-stage amicus curiae brief filer should aver to notice in Footnote 1.
A final word about consent: there is no required, or even usual form for consents. We have seen formal letters written under the consenter’s letterhead, letters written by amicus counsel and signed-off by the consenter, and even email chains demonstrating an informal correspondence between the attorneys, often ending with a simple, “Yes.”