Use of an Amicus Brief

Copyright 2001-02 by Ronald B. Standler

The Latin phrase amicus curiae means "friend of the court". In common usage, the phrase is shortened to amicus. An amicus curiae submits a written essay to a court, called an amicus brief, that provides the judges with new information or a different perspective from what the parties provided to the judge.

An amicus brief might contain:
The attorney who prepares the amicus brief usually represents either a: Such people can not qualify as an intervening party in the case at bar, but are, nonetheless, affected by the outcome of the case, which may become precedent for deciding future cases.

For example, in 1997, Walter Elden wrote an essay entitled Why a State Professional Engineering Board Should Enter an Amicus Curiae Brief in a Wrongful Discharge Case. Copies of his essay have been posted at the, NSPE, and NIEE websites.

function of an amicus brief

Often, a party will contact organizations and request an amicus brief to assist that party's position. Particularly useful functions of an amicus to a party include:

when and how briefs are filed

Most amicus briefs are filed late in the process of litigation, when the case is before the U.S. Supreme Court, a federal Court of Appeal, or a state supreme court. That may be too late to have the maximum influence. While amicus briefs are rare in trial courts, it makes sense for an amicus to try to get a favorable ruling in a trial court, since appellate judges are generally reluctant to reverse a decision of a trial court. Further, appellate courts only consider issues of law that were presented, or preserved for appeal, by parties at trial. An amicus can consult with the attorney for a party and suggest additional legal theories that the party may want to present at trial.

Submitting an amicus brief is a two-step process:
  1. First, one must obtain permission of the court to submit an amicus brief, which is routinely granted.
  2. Second, after permission is obtained, the brief is submitted.
In practice, one often submits the motion for permission to file an amicus brief along with the brief itself, which is called a conditional submittal.

The amicus brief must be submitted to the court during the time that the parties submit their briefs. Because preparation of an amicus brief involves extensive legal research, as well as careful drafting and multiple revisions, it is recommended that potential clients hire an attorney to prepare an amicus brief at least one month before the deadline for filing the brief with the court.

An amicus almost never participates in oral arguments before an appellate court and rarely appears at a trial. The role of an amicus is restricted to submitting one brief to the court.

Dr. Ronald B. Standler

I am licensed to practice before:
I am interested in preparing amicus briefs on a variety of topics, including:
I discuss elsewhere my interests and credentials and my fees.

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revised 16 Jan 2007

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