When It’s a Matter of Law: “Friend of the Court” Briefs in Tobacco Litigation Kerry Cork, Staff Attorney Tobacco Control Legal Consortium

What’s an “Amicus Curiae” Anyway?

Amicus Curiae  “uh-MEE-kuhs KYOOR-ee-eye” Plural: Amici (“uh-MEE-kee” or “uh-MEE- see”)  “Friend of the court”

Amicus Curiae  Outside party NOT involved in a particular litigation but with a strong interest in the subject matter

Amicus Curiae  Allowed by the court to -- Advise it on a matter of law directly affecting the litigation Inform court of relevant additional information or arguments Draw the court’s attention to implications of a potential holding on a particular group, jurisdiction, industry

“Brandeis Brief” Use of policy-oriented social science evidence beyond the record

Who Files Amicus Briefs?  Special interest organizations and trade groups  Parties in other similar cases  Persons affected by, but not parties to, the litigation  Law professors and lawyers practicing in a specialized field  The government (or agency or official)  National, state and local bar associations

What Does an Amicus Do?  Draft a brief  Recruit other parties to join the brief  File the brief OR  Join a brief

The Good News... An amicus brief can –  Focus court on impact beyond the parties  Buttress or supplement a weak party brief

The Good News... An amicus brief can –  Supply additional information  Advance arguments  Be a far less expensive way to participate in case than litigation

The Good News... An amicus brief can make a difference.  A decision may rely on grounds suggested by amicus.  A decision may rely on information or factual analysis provided only by an amicus.  A decision may be narrower or broader than parties have urged because of a persuasive amicus brief.

The Bad News... An amicus brief is –  A significant undertaking

Rules*  Must be new and relevant matter  Must follow proper procedure Filing schedules, format, process varies from court to court * Rule 29, Federal Rules of Appellate Procedure

General Rules  Need written consent of all parties when filing OR  Need consent of court to file

Motion for Leave  Interest of the applicant (amicus)  Reasons the amicus brief is desirable  Disclosure requirements The court has discretion to grant or deny permission of parties to file amicus briefs

The Bad News... An amicus brief –  Requires coordination between different parties

The Bad News... An amicus brief can be –  Expensive

The Bad News...  A poorly or hastily drafted brief Runs risk of duplicating arguments or introducing irrelevant issues May raise more questions than it answers

What Impact Do Amicus Briefs Have on Court Decisions?

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Points to Consider  Is this case significant enough to merit amicus involvement (investment of time, labor and money)?  Do the potential benefits outweigh the costs?  What is our interest?

Points to Consider: Function of the Brief Address policy issues? Provide a more attractive advocate? Supplement a party’s brief? Endorse a particular position? Correct a decision? Limit effect of unfavorable or expected decision?

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