When hearing about this or that court case you occasionally hear about a person or a group filing what is called a Friend of the Court brief.
First off, can anyone (or any group) file such a brief with the court or does the judge need to say it’s ok to submit one first?
Secondly, do Friend of the Court briefs ever have any bearing whatsoever on the outcome of a case? It seems to me that there are all sorts of rules of evidence and procedures such that any schmo writing whatever they please should count for little to nothing as far as the court is concerned. Is that wrong? Will a court not only read the brief (i.e. must they) and if they do will they allow it to sway the court’s decision?
Assuming the brief can have little or zero affect on the outcome of a case why bother? Is it just a chance for someone to go on record and nothing more?
A brief is a statement of the issues in a case and the rules governing those issues, as determined by previously decided cases. An especially persuasive amicus brief will bring to a judge’s attention cases or arguments that have not been brought up by the participating attorneys. Because they only state the law, they are not subject to rules of evidence. The court’s permission is usually (always?) required to file. See the Supreme Court’s rules.
Friend-of-the-court briefs are most often filed at the supreme court level, where the court is often in the position of making law and setting policy rather than just interpreting precedent and finding facts.
Anyone can file such a brief, including the government. It’s up to the judges or justices in question to decide how seriously to consider the arguments made in such briefs, but, theoretically at least, they aren’t completely meaningless.
It often is often a chance to go on record, but it is usually more than that. Should one file such a brief, one would think that he or she believes that the brief makes an important point about law or policy and is not just making an argument regarding a finding of facts.
The facts (as in the truth or falsity regarding any particular claim about the facts) are usually outside the scope of an appellate-level court anyway, so the rules of evidence and procedures are probably not at issue.
Accepting friend-of-the-court briefs is a recognition that in some cases, anyway, there are more people who have an interest in the outcome than just the parties to an action. Especially at the supreme court level it would be ludicrous to pretend otherwise.
If someone is so interested in swaying the outcome of a case why bother with the Amicus Brief in the first place? Why not go to the attorney’s representing the side you are on and lend your aid to them so THEY can file whatever is needed fully within the confines of the case itself (which presumably would get greater attention from the court)?
But it won’t necessarily get greater attention from the court. if it’s in the party’s brief instead of in a separate brief. Furthermore, the “friend of the court” does not necessarily want to equate its interests with the party’s interests. It’s a way of saying that there are bigger issues here than just the influence of your decision on the parties themselves. And it also gives the friend of the court to present its argument in its own terms, rather than depending on the party to articulate it.
The lead attorneys on the case are not A-list players, but the issue is one that could affect many other cases. So the amicus figures “if I let pudknocker x lawyer present this case, he/she might lose it because they get outbriefed/outlawyered/outargued by the other side”. Of course, this is never said outright. But the amicus writer just politely asks the lead lawyer if they have any objection, which of course they don’t, no matter how good or bad they are (or think they are).
The amicus group wants to be able to be on record as supporting point “x”, and/or wants to justify its existence to its constituents. [Note: Hardly ever, or perhaps never, has an attorney who is not being backed up by some organization just woken up one day and said “Hey! Let me take the time to write an amicus brief! I feel very strongly about the issue!”].
This is just a form of political pressure. If the campaign contributions weren’t enough (or perhaps to remind the Judge(s) of said contributions), this is a way to signal “Hey, We, the Association of Insurers/Homebuilders/Banks/Whoever Really Care About This Case, old buddy, old pal!” [PS This also works on unelected judges, because they don’t forget who appointed them, either].
See #3 above, taken to a higher step. Amicus group decides to underwrite brief and – coincidentally – hires lawyer X’s firm to write it. Coincidentally, I say, because lawyer X or his firm is believed to have some favor with the court!
Effectiveness?
Like chicken soup, it may not help, but it sure can’t hurt (except for the money that is takes to get the brief written).
JohnW77707, Esq.
As I understand things, the way this is usually done is to file the motion (application) for leave to file an amicus brief with the actual brief attached. So, while in theory you need permission, in practice you can present your brief as a fait acompli.
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What the other folks said. Frequently an amicus brief will present things from a different perspective, and present slightly different arguments, which may be useful since the main brief may omit certain perspectives and/or arguments for the sake of consistency and clarity.
And yeah, I agree with the political angle too. Certainly it is cause to be happy when the government takes one’s side in a case. And many non-governmental organizations have or have had a lot of influence. I imagine it would have been nice, in the late 1960s, to have the NAACP-LDF file an amicus brief in support of one’s position.
Snoooopy, though sarcastic, raises another point. Almost always, by the time the case gets to a high enough appellate level that the amici feel it necessary to get invovled, there is plenty of brianpower behind the bench anyway. US Courts of Appeals panels have three judges, each of which has three (usually) top-of-their-class law clerks. Not every clerk works on every case but they are there, especially for the biggies. So in theory in even that panel you are looking at three accomplished jurists and nine high candlepower recent law school graduates who know how to hit the books. That is already a better legal team than most law firms in the country can field. An en banc reconsideration by the entire U.S. Court of Appeals means anywhere from 10-15 judges with the corresponding army of eager clerks (who are tired of hammering out affirmances of criminal sentencing guideline cases anyway). SCOTUS has 9 judges, of course, with (I believe) 4 clerks each, of the highest caliber.
In short, a properly-functioning appeals court ought to be able to do better research than most litigants anyway. So the likelihood of the amicus finding “that one case that no one else (including the Court) could find” is pretty low.
JohnW77707, Esq.
Note: “That is already a better legal team than most law firms in the country can field” refers, of course, only in the sense of researching and writing an appellate brief, which is the only matter at issue at the time.
In my experience, amicus briefs are not restricted to appellate courts. They can also be filed at the trial level, where there may not be the hoards of clerks and research facilities others have mentioned. For example, government agencies or boards may have an interest in the interpretation of a statute or the allocation of jurisdiction, but not necessarily any stake in the dispute. An amicus brief allows them to provide assistance to the court in what may be a very technical area, without necessarily taking sides on the merits of the dispute. I recently filed an amicus brief along these lines, where there was a difficult jurisdictional issue and the court hearing the matter indicated it wanted submissions on the issue from the agency I represented.
