Amicus Brief

Definition of Amicus Curiae

Pronounced

ah-mee-kuhs  kyoo ree-ay

Noun

1. A brief filed with an appellate court by an individual or entity who is not a party to the litigation, but who has an interest in the court’s decision.

Origin

1605-1615       New Latin

What is an Amicus Brief

From a tradition in the legal world of accepting informational briefs from certain individuals or entities considered to be friends of the court, came the modern legal practice of submitting amicus briefs for the purpose of providing additional information from a somewhat neutral position. While an amicus brief may be filed with an appellate court, or a state supreme court, they are most commonly submitted to the highest court in the land, the U.S. Supreme Court.

The sheer volume of cases that makes its way to the Supreme Court creates a monumental task when it comes to researching all pertinent information necessary to make such important rulings. Once the Supreme Court agrees to hear a specific case, the parties submit briefs presenting their side of the matter, pointing out which laws or constitutional issues are in dispute, and how the parties think they should be interpreted. Of course, the Court cannot rely solely on the biased opinions of the opponents, and is expected to delve deeply into the issues of constitutional rights, obligations, and the role of government.

Issues brought to the Supreme Court have a widespread application to Americans in some context, and as such, people and entities not involved in the case may offer to provide a source of neutral research and information to the court. Because these amici curiae (“amici” is the plural form of “amicus”), friends of the court, have some interest in how the court decides, such briefs are certainly skewed one direction or another by the research of the writer, but it is often written from a position of neutrality.

Who Can Submit an Amicus Brief

Normally, the court can only consider testimony and evidence provided by the actual parties to any litigation. This applies to both civil lawsuits and criminal cases. Occasionally, however, the ruling on a case has the potential to greatly affect a large group of people or interests, such as an entire profession, an industry, or even a particular activity. If the trial court’s ruling on such a case is appealed, there is a possibility that a higher court’s decision could become binding precedent, meaning that the decision would be used to decide similar cases in the future.

In such cases, a non-party that is likely to be affected by the higher court’s decision may prepare and submit an amicus brief, providing additional insight with a broader view than what either party to the actual case is likely to provide the court. In many jurisdictions, at the appellate and state supreme court levels, such non-parties can submit amicus briefs without leave of the court, though the court can decide whether to consider, or even read, them.

Leave of the Court in U.S. Supreme Court Cases

When a case goes before the U.S. Supreme Court, any non-party that wishes to submit an amicus curiae brief must apply to the Court first, and convince the court that it has a protectable interest in the matter. The interested party must show its ability to provide a broader view of the potential ramifications of the actual legal issue, rather than a finding in favor of either of the parties.

An amicus brief may be submitted by either a private person or entity, or by the government itself. In fact, many amicus briefs are submitted by a wide variety of governmental agencies, such as school districts, healthcare divisions, and law enforcement agencies. Although consent must be obtained to submit an amicus brief to the Supreme Court, no consent is required for any officer or agent of the U.S. government.

For example:

Redwood School District has become embroiled in a legal battle over the establishment of magnet schools in the district, which are intended to attract students interested in a certain track of learning. These schools offer the required general education curriculum, as well as classes related to such specialties as art, drama, music, science, and sports. A group of parents began the litigation by filing a civil lawsuit against the school district, as well as the state, claiming that the establishment of such schools violates their children’s rights to a free, quality education, and discriminates against certain types of student.

The trial court decided in favor of the school district, after which the matter began its trek through the appellate court system. Eventually, the U.S. Supreme Court agreed to hear the matter, and briefs were submitted to the court by the school district, the state education division, and the attorney for the parents. Because this is an issue for which the Supreme Court’s decision would have broad impact nationwide, several other school districts not party to the litigation, request and are granted permission to submit amicus briefs.

While attorneys for the litigants on either side of the case will present arguments and facts that most favor their clients, the amicus briefs should contain information gathered as these non-parties consider the broad view of the matter, including how each outcome is likely to affect all people and entities touched by the issue. In this manner, important decisions made by high-level courts will not be dependent solely on the arguments present by the parties directly involved in the case.

Rules for Filing an Amicus Brief

Appellate courts, especially supreme courts, handle such a large volume of cases that they have developed strict rules, including timelines and formatting requirements, to help keep themselves organized. The rules for filing an amicus brief with any of these courts can be found on the court’s website, and may often be obtained by visiting the court clerk’s office. The rules for filing an amicus brief are specified under the rules for “friends,” rather than rules for “parties,” and cover specific information on deadlines, content, and formatting.

Amicus Brief Filing Deadlines

As with all court cases, there are filing deadlines for all actions and documents to be filed. In most jurisdictions, petitions for permission to file an amicus brief is due within 30 days after the appellate petition is filed. This is the same day that the responding party’s response is due. The filing deadline for the actual amicus brief varies according to which party, or neither party, it supports.

For instance, an amicus curiae brief that supports the position of the petitioner, or which supports neither party, is due within 7 days of the petitioner’s deadline for filing its brief. An amicus curiae brief that supports the position of the respondent is due within 7 days of the respondent’s deadline for filing its brief.

Amicus Brief Required Content

The cover of the brief must list a member of the appellate or supreme court bar as the Counsel of Record, though it is common for several attorneys to collaborate on the brief. The party supported by the brief must be identified on the cover, or it must be stated whether the brief supports reversal or affirmation of a previous ruling, without supporting either party directly. The brief must be divided into sections labeled as:

1. Table of Contents
2. Table of Authorities
3. Interest of Amicus Curiae (interest of the friend of the court)
4. Summary of Argument
5. Argument
6. Conclusion

Amicus Brief Formatting

Required amicus brief formatting is specifically outlined in the rules of the court in which it is to be filed. As an example, the following refers to the required amicus brief formatting for the U.S. Supreme Court. Formatting guidelines change periodically, though up-to-date guidelines may be obtained on the Supreme Court website, or on the website for the court to which the brief is to be submitted.

• Word Count – the maximum word count for a petition to submit an amicus curiae brief (called the “petition stage”) is 6,000. The maximum word count for an actual amicus curiae brief (called the “merits stage) is 9,000. Word count of the finished document may be obtained from the word processing program in which the document was prepared, and must be certified by the document preparer, and signed by the attorney.
• Page Setup and Font – the rules require the brief to be printed on a specified size paper, single-sided, with minimum specified margins. A requirement to cut the paper to a specified size, which is smaller than letter-size, is not uncommon. The font used must be Century Schoolbook 12 point. The paper used must be opaque, meaning solid, not partially see-through, and at least 60 lbs. in weight.
• Binding – the brief must be bound by saddle-stitch (stapled along the center spine), or perfect bound (book-quality binding). An amicus brief may not be spiral bound, or bound with metal, plastic or string bindings.
• Cover Color – by color-coding the covers of different types of briefs filed with the Supreme Court, organization of cases is made easier. The cover of an amicus brief at the petition stage must be cream colored. The cover of an amicus brief at the merits state in support of the petitioner, or in support of neither party, must be light green. The cover of an amicus brief at the merits stage in support of the respondent must be dark green.
• Required Content of Footnote 1 – the first numbered footnote of the brief must contain a disclosure statement as to whether the parties gave their consent to file the brief. The rules of court, as found on the Court’s website, give the specific wording to be used.

Real-Life Attempt to Inject Humor into an Amicus Brief

In March 2014, an amicus brief was filed with the U.S. Supreme Court on behalf of the Cato Institute and popular political satirist P.J. O’Rourke, in the matter of Susan B. Anthony List v Driehaus. The case brought the issue of whether an Ohio state law making it illegal to “disseminate a false statement concerning a [political] candidate,” whether the disseminator knew it was false, or whether it was done with a “reckless disregard” to whether the statement was false.

This issue stemmed from ads published in Ohio during the 2010 elections, claiming that the Republican candidate had supported taxpayer-funded abortions, because he had voted in favor of the Affordable Care Act. When this case found its way to the U.S. Supreme Court on the grounds of the First Amendment rights of free speech, the Cato Institute, a self-styled think tank dedicated “to the principles of individual liberty,” partnered with O’Rourke to file an amicus curiae brief.

The question presented to the Court:

“Can a state government criminalize political statements that are less than 100% truthful?”

While technically holding to the letter of the amicus brief requirements, the authors strove to illustrate their point with their first required statement in footnote 1:

“Amici and their counsel, family members, and pets have all won the Congressional Medal of Honor.”

The brief postulated that a “truth” that is declared “from the gut” because it feels right, even in the absence of logic or presence of evidence, is a key component of political debate in the U.S. This point was further driven home as the Court was then presented with discussion of this serious topic in a decidedly un-serious manner:

“[W]here would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?”

“Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.”

The brief pointed out that it would be a sad day when the government attempted to replace satire, comedy, and snark with “just the facts.” It then pointed out truthiness that has been spouted by modern media, which is considered to be the purview of the tabloids and politicians, with a few timely examples:

• President Obama is a Muslim
• President Obama is a Communist
• President Obama was born in Kenya
• Nearly half of Americans pay no taxes
• One percent of Americans control 99 percent of the world’s wealth.
• Obamacare will create death panels
• Republicans oppose immigration reform because they’re racists
• The Supreme Court is a purely political body that is evangelically [liberal/conservative]

The heart of the matter as presented in the Cato amicus brief centered around the fact that the Supreme Court has time and again ruled that political speech, even that speech about politicians and the government, is worthy of the highest level of protection provided by the First Amendment to the U .S. Constitution.

Related Legal Terms and Issues

• Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
• Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Leave of the Court – The court’s permission to perform an act, or to forego an act for which the court’s consent is necessary.
• Litigation – The process of taking legal action; the process of suing someone, or trying them for a criminal act.