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Do you really want to be a friend of the court?

Author / Coordinator: Michelle Lore
Minnesota Lawyer
March 2006

Amicus curiae really does mean “friend of the court,” appellate attorneys stressed at a recent continuing legal education (CLE) seminar.

On Feb. 24, the Minnesota State Bar Association’s Appellate Practice Section presented a lunchtime CLE program addressing the proper role of amicus curiae briefs and how they are viewed by the courts.

Panelists at the seminar — “Topics for the Experienced Appellate Practitioner” — included Minneapolis appellate attorneys William M. Hart, Kay Nord Hunt, Sharon L. Van Dyck and former Minnesota Supreme Court Justice Edward Stringer. Minneapolis attorney Katherine A. McBride moderated the event.

The panelists unanimously opined that amicus briefs should be impartial rather than advocate for a particular party.

“You really have to take as many steps as you possibly can in your brief to stay as neutral as you can with regard to the dispute that is before the court,” Hart told attendees.

Proper role

McBride began the program by questioning whether the role of amicus parties has become too partisan, or whether amicus curiae should be a “friend” and actually serve the court.

Hart, who frequently works on amicus briefs for the Minnesota Defense Lawyers Association, responded that it’s important for amicus curiae to avoid advocating for a side.

“I tend to think that the ‘friend of the court’ perspective is really important to maintain and that getting too wrapped up in the merits of the case or in advocating for one [party] or another compromises your credibility,” he said.

Hart suggested making a direct argument to the law as a whole, rather than supporting a particular side. “Otherwise the court will wonder why it should listen to you at all,” he said.

Van Dyck, who has been involved in amicus briefs on behalf of the Minnesota Trial Lawyers Association, explained that the brief should take a rigorous approach that is based in law.

“The role of an amicus brief is to clarify the law in some way,” she said. “When you get away from that, the court doesn’t [consider] your brief.”

Stringer agreed, pointing out that an amicus brief that simply reiterates the position of one of the parties is not helpful to judges. An amicus brief should bring an industry-wide perspective, a broader perspective that the parties may not even be aware of, he said. “They can be very effective if they are done right.”

Hunt noted that in her experience amicus briefs are more difficult to write. It is easier to write for a party because you are advocating for one side, she said. With an amicus brief, however, “you need look at the issue beyond the facts of the case.”

But Hart finds amicus briefs easier to write than advocacy briefs, noting that it’s not necessary to “chase down facts.”

“You don’t have to concern yourself with the record,” he said. “You can go right in, in the clearest, most persuasive way you can figure out.”

Van Dyck recalled a no-fault case before the Supreme Court in which there was a lot of room for confusion. Both the plaintiff and defense lawyers were advocating positions that may have been good for their respective clients but would not work for the system as a whole, she said.

Van Dyck and Hart, who were both amicus curiae on the case, discussed the issue and ended up submitting unusually similar briefs. “We decided we had to ignore the position taken by both sides … and come out with some sense of fairness on the law,” Van Dyck observed.

Panelists pointed out to this as a perfect an example of how amicus briefs can assist the court and influence the result.

Record material

Practitioners are generally limited in what they may submit with the appendix to an amicus brief, although at the federal appellate level, they tend to contain a lot of “extra-record material.”

Van Dyck opined that this can be good because it gives the judges a broader perspective and a “real world view” on the issue involved. It may indicate how the decision may be more encompassing than initially anticipated, she said.

On the other hand, there is a basic sense that “something is not right” about the inclusion of data from outside the record at such a high level when none of the lower courts had access to it, Van Dyck observed. “There’s a fairness issue there that I have a problem with.”

Stringer pointed out that in a footnote to a decision issued in November, Camacho v. Todd and Leiser Homes, the Minnesota Supreme Court determined that if an appendix item submitted with an amicus brief lies in the “public domain” the material is suitable for inclusion.

Stringer explained that the high court has previously said that if something is available on the Internet, it will be considered to be in the “public domain” and therefore may properly be included in an amicus brief. “The court will lean further and further toward that test,” he said.

Ready supply

Panelists explained that there are some cases or issues in which the court particularly appreciates receiving amicus briefs.

Hunt noted that there are certain kinds of cases in which there is a “ready supply” of amicus contenders, like insurance cases. Stringer added that the League of Minnesota Cities submits an amicus brief on nearly every immunity issue involving a city. “It’s helpful,” he acknowledged.

The former justice stressed that input from the bar association on an issue is also appreciated by courts. “The justices look at when a section of the bar weighs in on a particular point,” he said.

Minnesota Court of Appeals Judge Harriet Lansing, who was in the audience, said it is also helpful to the Court of Appeals to see amicus briefs in some cases, adding that it may be a “red flag” that it’s a particularly significant case. She urged attendees to file amicus briefs with the appellate court in appropriate cases.

“We do see a fair amount of involvement [of amicus curiae] at the Court of Appeals — and I would like to encourage it,” she said.