When business groups think about advancing their policy or legal goals they often default to lobbying elected or appointed officials, neglecting the opportunities to influence law and policy through the third branch of government, the judiciary. But the third branch is worth a second look.
One of the more effective tools for exerting influence is what is called an amicus brief, which can involve far fewer resources than traditional lobbying. Amicus comes from Amicus curiae, which is Latin for friend of the court.
A group or association with a strong interest or perspective on a legal issue may advocate in court for its position in a friend of the court brief. The brief typically suggests a rationale or resolution consistent with the group or association’s interest.
The courts often ask government officials and agencies to weigh in on matters of public interest. There is no reason why business groups, associations and nonprofits should give up the opportunity to provide advice and guidance on issues that matter to them.
Amicus briefs can make a difference, as courts frequently recognize and cite them in their opinions. In one example involving taxation of the insurance industry – where a court ruled in favor of an insurance company – the court mentioned a brief filed by the Insurance Federation of Pennsylvania: “The Federation’s amicus brief is well organized and helpful in understanding [the] arguments on appeal.”
In Pennsylvania, no special permission is needed to file an amicus brief in an appeal, but timing matters. The amicus must file its brief by the same deadline as the party whose position the amicus supports. If an amicus does not support any party’s position, it files on the same day as the first brief is filed by the appellant.
An amicus brief can also make a significant difference in decisions by the Pennsylvania Supreme Court over whether to accept an issue for review. In the past, the court – which has the final word on legal matters in the state – allowed amicus briefs only by permission. It now permits amicus briefs as long as the amicus filed a brief in the lower appellate court. Given that the Supreme Court agrees to review only a few cases, this new opportunity is a significant benefit. And it is a good reason to consider getting involved as an amicus when a case is being briefed in Commonwealth Court or Superior Court.
Amici do not have to include all the elements required in briefs filed by parties to a case, such as a recitation of the facts of the case. As a result, the amicus is free to focus in laser-like fashion on the particular legal or policy points its authors want the court to consider.
But that doesn’t mean it’s a free-for-all. Pennsylvania’s appellate courts impose some technical requirements. For example, the brief must contain a statement of the amicus’ interest, as well as a table of contents, table of authorities, argument and a conclusion. An amicus cannot raise issues not argued by the parties and, absent court permission, does not get to present oral argument. An amicus brief also must disclose if a party to the appeal has paid in whole or in part for the preparation of that brief. These rules, designed to make the amicus brief useful to the court, en-hance rather than impede effective presentation of an amicus’ viewpoint.
There are no statewide rules governing the filing of amicus briefs on issues being decided by county courts of common pleas. However, an individual court may have its own rules, which should be consulted before filing an amicus brief.
The rules for filing amicus briefs in federal appellate courts are similar, but there are important differences. An amicus brief may be filed only with the written consent of all parties, unless the amicus is a federal agency or official, or the court requests or grants permissions for the amicus to file. The federal appellate courts generally are liberal in granting permission and, therefore, experienced appellate counsel typically encourage their clients to consent to the filing of an amicus brief when asked. That said, it takes a bit of advance planning in order to file an amicus brief in federal court.
Perhaps now more than ever, the nation’s courts play a key role in establishing rules for government, businesses, nonprofits and individuals. Amicus briefs are an effective means of conveying to your organization’s viewpoint to the judiciary and influencing a court’s decision.
Dennis A. Whitaker is a partner with Hawke, McKeon & Sniscak LLP in Harrisburg and a founder and principal contributor to Pennsylvania Appellate Advocate, a blog on issues of interest to appellate practitioners.