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

3. What’s an “Amicus Curiae” Anyway?

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

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

6. 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

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

8. 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

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

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

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

12. 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.

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

14. 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

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

16. 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

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

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

19. 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

20. What Impact Do Amicus Briefs Have on Court Decisions?

21. ?

22. 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?

23. 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?

25. Tobacco Control Legal Consortium 875 Summit Avenue St. Paul, MN 55105 (651) 290-7509 www.tclconline.org