Amicus Curiae Briefs: The Court's Perspective*
Flango, Victor E., Bross, Donald C., Corbally, Sarah, Justice System Journal
Amicus briefs can affect the perspective from which an appellate court views a case by showing how the decision is important to others not party to the case, by providing additional information and expertise that parties may not have, and by developing legal arguments that parties sometimes cannot. Whereas most studies of amicus curiae briefs focus on the influence of these third-party briefs on decisions by the U.S. Supreme Court, this article considers amicus curiae briefs in state appellate courts. Considering amicus briefs from this perspective promises to benefit both courts, because they can encourage the type of amicus briefs they find most helpful, and the organizations that file them, because they will have better information on what appellate courts look for in amicus briefs. How useful are amicus briefs to state courts of last resort? Most respondents, chief justices and appellate court clerks from the courts of last resort in thirty-nine states, viewed amicus briefs as a benefit but think they could be made more useful by being consolidated with other briefs where possible and by focusing on providing new information and implications of decisions not provided by the parties.
Most research on amicus curiae participation has been conducted from the perspective of the organizations seeking to influence particular court decisions (Epstein, 1993, 1994; Epstein and Knight, 1999; Kearney and Merrill, 2000; Krislov, 1963; O'Conner and Epstein, 1981-82). But what is the court perspective on amicus curiae briefs? To the extent that amicus briefs are prepared by parties with specialized knowledge, these briefs can help keep courts abreast of the latest scientific, medical, and social issues. Yet do courts find them useful as a source of new information in this era of extensive discovery, computer-assisted legal research, and a massive amount of readily available information? What proportion of amicus briefs provide information not otherwise available to the court and what portion simply provide "canned" arguments or reiterate the arguments of litigants? What criteria do courts use to distinguish useful from less useful briefs? When would courts encourage amicus briefs be filed? What, then, is the overall evaluation by courts of the value of amicus briefs?
Making explicit the court perspective on amicus briefs could be helpful to courts if that information helped organizations that participate as amici curiae understand the conditions under which courts would most welcome the filing of amicus briefs, the types of information that courts are most receptive to hearing, and generally what makes briefs that are filed more effective. Organizational resources are not unlimited, so surely it is in their interest that to make influential those amicus briefs that are filed. In this sense, amicus briefs can be viewed as an "in-kind" donation of information to courts.
Before addressing further the question of how amicus briefs can assist appellate courts, it may be useful to note that there is some disagreement over the role of amici curiae-are they friends of the court or friends of the party? The amicus curiae originated in early English common law as a "selfless servant of the court" (Kaye, 1989:10), and some believe that is the proper role. For example, Judge Robert Hemphill, senior judge of the U.S. District Court for the District of South Carolina, writes:
Amicus Curiae is a Latin phrase for "friend of the court" as distinguished from an advocate before the court. . . . It serves only for the benefit of the court, assisting the court in cases of general public interest . . . , by making suggestions to the court . . . , by providing supplementary assistance to existing counsel . . . , and by insuring the complete and plenary presentation of difficult issues so that the court may reach a proper decision (Alexander v. Hall, 1974, quoted in Comparato, 2003:1).
Judge Richard Posner of the Seventh Circuit, himself "the nation's most cited judge" (Munford, 1999:279), agreed that amicus curiae should be a "friend of the Court, not friend of the party" and he strongly criticized amicus briefs that "fail to present convincing reasons why the parties' briefs do not give us all the help we need for deciding the appeal" (see the often cited Ryan v. …