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:
- citations to obscure cases that are relevant to the dispute at bar,
- discussion of either
- cases in foreign jurisdictions or
- scholarly articles
that may persuade the judge,
- factual information not presented by the parties at trial, or
- public policy statements (e.g., stating the effect on professionals
of a particular ruling for/against the plaintiff in the case at bar;
stating the impact of a ruling on industry practice).
The attorney who prepares the amicus brief usually represents either a:
- nonprofit organization (e.g., a professional society, trade association,
public interest group),
- corporation,
- government, or
- a party in another case with similar issues of law.
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
onlineethics.org,
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:
- Making broad statements of policy implications of a particular decision.
Such a broad statement
(e.g., "... tens of thousands of physicians would be affected ....")
would be blatantly self-serving if said by a party to the litigation,
but would be appropriate for an amicus representing
a professional society or trade organization who can legitimately
speak for their membership.
- Making supplementary arguments, which a party could not do without
exceeding the maximum length of the party's brief to the court.
Such supplementary arguments might review cases from other jurisdictions,
or review scholarly articles in archival journals,
which are not binding precedent on the court hearing the dispute,
but which may be persuasive.
- In some cases, a party before the court may be a disreputable scoundrel
for whom the judge has little sympathy. An amicus can provide
a more creditable, more attractive advocate for a particular
argument. For example, the American Civil Liberties Union (ACLU)
often submits amicus briefs in cases involving alleged obscenity.
- When a party wants to appeal to U.S. Supreme Court, that
party files a Petition for a Writ of Certiorari with that Court.
In recent years, U.S. Supreme Court grants only
about 1½ % of the Petitions that the Court receives.
Every party's Petition claims their case is important,
so an amicus brief in support of that Petition
may help convince the Court to grant the Petition and hear the case.
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:
- First, one must obtain permission of the court to submit an amicus brief,
which is routinely granted.
- 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:
- all state courts in Massachusetts,
including the Massachusetts Supreme Judicial Court,
- the U.S. Federal District Court in Massachusetts,
- the U.S. Court of Appeal for the First Circuit, and
- the U.S. Supreme Court.
I am interested in preparing amicus briefs on a variety of topics,
including:
I discuss elsewhere my
interests and credentials and my
fees.
this document is at http://www.rbs2.com/amicus.htm
revised 16 Jan 2007
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