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August 29, 2019 by Bruce D. GreenbergDownload PDF


GETTING YOUR VIEWS, OR YOUR COMPANY'S VIEWS, HEARD IN SOMEONE ELSE'S APPEALBruce D. Greenberg


Most people want to avoid litigation. But sometimes we wish we could play a role in an appeal that does not involve us directly, a case we don’t have to be a part of. One reason for that is when someone else’s appeal involves an issue whose decision would affect us as well. When you learn of such a case, you need not sit helplessly by, hoping that “your side” will win. You can take an active role by seeking to become an amicus curiae, or “friend of the court.”

What is an Amicus Curiae?

An amicus curiae is an outsider to an appeal who advises the court about the issues of that case. The idea that one who takes on that role is a friend of the court derives from the concept that the court will make a better, fairer decision if it gets input from someone who is not a party but has the “bigger picture” in mind.

What Role can an Amicus Curiae Play in an Appeal?

Like a party to an appeal, one who is granted the status of an amicus will be given the right to file a brief. Sometimes, depending on the case and the court in which it is pending, an amicus who wishes to appear at oral argument and present his, her, or its views will be allowed to do that, too.

In the Appellate Division, amici are often permitted to argue as well as brief the appeal, though that is up to the panel that is to hear the appeal. The practice in the Supreme Court varies. Some amici, such as the Attorney General’s Office, generally receive permission to argue whenever they seek it. Others, in contrast, may be limited to filing a brief.

In especially important cases, or where multiple amicus motions are filed, the Court may allow one amicus supporting each side to argue. If so, the proposed amicus given that right is often the first one who files a motion for leave to participate as an amicus, including the right to argue orally. Thus, prompt filing of such a motion may be important.

In the Third Circuit, Federal Rule of Appellate Procedure 29(a)8) provides that an amicus may participate in oral argument only with the court’s permission. No criteria for that permission are stated there.

How Does One Become an Amicus in a New Jersey State Court Appeal?

Anyone who wishes to act as an amicus must apply for permission to do that. In the New Jersey state courts, the same Court Rule, 1:13-9, governs amicus applications in both the Appellate Division and the Supreme Court. That rule requires a motion by the proposed amicus and sets forth the elements that must be described “with specificity” within the motion:

1. The identity of the applicant.
2. The issue intended to be addressed.
3. The nature of the public interest in that issue.
4. The nature of the applicant’s special interest, involvement or expertise in respect to that issue.

In addition, the proposed amicus brief must be submitted with the motion for leave to appear.

The rule goes on to say that the court “shall grant the motion if it is satisfied under all the circumstances that the motion is timely, the applicant’s participation will assist in the resolution of an issue of public importance, and no party to the litigation will be unduly prejudiced thereby.” The Supreme Court has elaborated on that language in case law. In one case, the Court referred to amici ensuring that “all recesses of the problem will be earnestly explored.” In another decision, the Court stated that an amicus had “enlightened [the Court’s] deliberations.” That language helps potential amici know how to structure their motions.

As the rule states, timeliness is an issue. To seek amicus status in the Appellate Division, the rule requires a motion to be filed “on or before the day when the last brief is due from any party.” The Supreme Court is a somewhat different story, however. That is because there are two separate points at which amici might seek to appear.

Sometimes amici seek to file their briefs when the Court is considering whether to grant certification (or, in other instances, leave to appeal). In that circumstance, an amicus motion is due, as in the Appellate Division, “on or before the day on which the last brief is due from any party.”

More commonly, though, amici file motions after the Court has agreed to grant review. In that case, such motions must be filed within 75 days of the date when the Court posts on the Judiciary website an order granting certification or leave to appeal, or a notice of appeal as of right. It is therefore important to monitor the website, since late motions will be granted “only on a showing of good cause demonstrated to the satisfaction of the Court.”

How Does One Become an Amicus in a Third Circuit Appeal?

Federal Rule of Appellate Procedure 29 is a road map for would-be amici. Private parties “may file a brief only by leave of court or if the brief states that all parties have consented to its filing.” That second path is not available in our state courts. The motion “must be accompanied by the proposed brief and state (A) the movant’s interest; and (B) the reasons why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.”

The cover of an amicus brief in a federal appeal must state which side the proposed amicus supports. The amicus motion and brief must be filed “no later than 7 days after the principal brief of the party being supported is filed.” If the amicus is not supporting either side, the amicus papers must be filed no later than seven days after the appellant’s or petitioner’s principal brief is filed, absent leave to file later than that.

Rule 29 also limits an amicus to a brief half the length that the rules allow for the principal brief of the party that the amicus supports. Even if that party obtains leave to file a longer brief than the rules otherwise allow, the amicus does not get more pages as a result. Thus, concision is important in amicus briefs.

Who Can Act as an Amicus?

The Supreme Court has accepted as amici a wide range of movants. Companies or organizations with particular knowledge of or interest in the issues at hand have often been allowed to appear as amici. So have individuals such as lawyers who have expertise in the subject matter of the appeal.

In at least one case, the Appellate Division permitted a company involved in other litigation on the issue before the Court to participate as an amicus. When that case went to the Supreme Court, dissenters in the Court’s decision objected to the company’s participation, labeling it as “inviting the fox into the hen house.” But the majority had no problem with that, something for future amici to keep in mind.

In state court appeals, once someone has been granted leave to appear as an amicus in a lower court, whether at the trial level or in the Appellate Division, that amicus may file papers in a higher court without the need to seek further leave. That avoids requiring amici to do the same thing twice, reducing expense and the need for duplicative motion practice.

Lite DePalma Greenberg, LLC attorneys have represented amici curiae in a number of appeals. Those amici have ranged from the Center for Auto Safety to the Hudson County Taxpayers Association, an organization of landlords, and from the Consumers League of New Jersey to the American Group Psychotherapy Association, an organization of mental health professionals of numerous disciplines. For more information on Lite DePalma Greenberg, LLC’s appellate practice, please visit www.litedepalma.com/appellate.