What Is an Amicus Brief?

An amicus brief is a legal document filed in appellate courts intended to assist the court by offering additional relevant information or arguments the court may want to consider before making its ruling. Amicus briefs are filed by amicus curiae—Latin for “friend of the court”—a third party who has a special interest or expertise in a case and wants to influence the court’s decisions in a particular way.

Amicus Brief Definition 

An amicus curiae, one who files an amicus brief, is an individual or organization holding strong views on the action being considered by the court, but not a party to that action. While ostensibly filed on behalf of one of the parties involved in the action, amicus briefs actually express a rationale consistent with the views held by the amicus curiae. 

Amicus briefs are typically filed in the process supporting a cause that has some bearing on the issues in the case by those who take the position of one side in the matter. An amicus curiae are typically, but not necessarily, an attorney, and is rarely paid to prepare the amicus brief. The amicus curiae may not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes their views valuable to the court.

Besides private individuals, the groups most likely to file amicus briefs include interest groups, legal scholars, government entities, businesses and trade associations, and non-profits.

Role in Court Cases 

Most amicus curiae briefs are filed in appeals cases concerning matters of wide public interest. Cases most likely to draw such briefs are those involving civil rights—such as the 1952 case of Brown v. Board of Education— environmental protection, capital punishment, gender inequality, de facto segregation, and affirmative action. In cases heard by a U.S. court of appeals, filing an amicus brief requires the approval of all parties involved in the case or the permission of the court, except when the brief is filed by the U.S. government or a government agency.

In cases heard by the U.S. Supreme Court, most amicus briefs are filed in support of or opposition to a petition for a writ of certiorari—advising on whether the Court should hear the case. Other amicus briefs can be filed “on the merits” of the case, meaning that an amicus curiae is making arguments on how the Court should rule in a case it has already agreed to hear. In recent years, the 2012 constitutional challenge to the Affordable Care Act, NFIB v. Sebelius, drew 136 amicus briefs, a record broken three years later in Obergefell v. Hodges—the same-sex marriage cases, which drew 149 amicus briefs.

Uses of Amicus Briefs 

Amicus briefs can be important, sometimes crucial, in the appeals process by bringing relevant facts and arguments to the court’s attention that the parties involved or their attorneys have not already addressed. The matters raised in amicus briefs vary greatly depending on the details of the case, the parties involved, and other factors. In a 2004 survey of former US Supreme Court law clerks, a majority of the clerks said that amicus briefs are most helpful in cases involving either highly technical or specialized areas of law or complex statutory and government regulatory processes.

Amicus briefs can also inform the court about more precise issues, such as a juror’s or witness’ competency, the correct procedure for completing a deed or will, or evidence that a case is collusive or fictitious—meaning that the parties are deceiving the court about their qualifications or reasons for being there.

Because amicus briefs can provide the court with information and context that the parties cannot, they can offer a unique opportunity to shape the outcome of an appeal.

However, amicus briefs that merely repeat the party’s arguments and otherwise offer nothing new are of no value to the court. In some instances, filing an amicus brief will trigger the other party to do the same, resulting in “dueling” briefs which could confuse and frustrate the court. In addition, if a party to the case is unable to find the right amicus curiae, they might be better off having none at all. For example, an amicus brief that presents facts of scientific data that are unproven or can be easily refuted might impact the party’s credibility or cause a court to assume the opposite set of facts or data.

It is important that friends of the court serve the court without also acting as a “friend” to either of the parties to the case. The amicus curiae face a difficult balance between providing the court with useful added information and arguing for the cause of one of the parties. For instance, an amicus curiae may not assume the tasks of the parties or their attorneys. They may not make motions, file pleadings, or otherwise manage the case.

Sources

• McLauchlan, Judithanne Scourfield. “Congressional Participation As Amicus Curiae Before the U.S. Supreme Court.” LFB Scholarly Publishing, 2005, ISBN 1-59332-088-4.
• “Why and When to File an Amicus Brief.” Smith Gambrell Russell, https://www.sgrlaw.com/ttl-articles/why-and-when-to-file-an-amicus-brief/.
• Lynch, Kelly J. “Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs.” Journal of Law & Politics, Inc., 2004, https://www.ndrn.org/wp-content/uploads/2019/02/Clerks.pdf.
• McGlimsey, Diane L. “Expert Q&A on Best Practices for Amicus Briefing.” The Journal of Litigation, August/September 2016, https://www.sullcrom.com/files/upload/LIT_AugSep16_OfNote-Amicus.pdf.