United States: Amicus Curiae Briefs: Weighing In On Novel And Important Questions

Duane Morris pro bono attorneys regularly prepare amicus briefs on behalf of community-based organizations, professional associations, and industry groups in cases with important social implications. Most recently we participated as amicus counsel in Kingdomware Technologies Inc v. United States, U.S.Docket No. 14-916; Whole Women's Health v. Cole, U.S. Docket No. 15-274 and Froio v. McDonald, 27 Vet.App. 352 (May 29, 2015). Thomas R. Newman, a regular pro bono contributor, has written an article on the importance of amicus briefs in various types appeals. The article was published in the New York Law Journal on March 1, 2016. The article was coauthored by Steven J. Ahmuty, Jr. a partner at Shaub, Ahmuty Citrin & Spratt.

When an appeal involves legal issues that are novel or of statewide importance, appellate counsel should consider soliciting amicus curiae ("friend of the court") participation in support of their client's position. The first step is to identify potential amici who would be willing to submit an amicus brief to provide the court with information and perspectives beyond what is presented by the parties. For corporate litigants, in-house counsel can be a valuable resource for identifying potential amici and assisting appellate counsel in soliciting amicus participation.

Interest groups are frequent amicus participants. In Saint v. Syracuse Supply Co.,¹ for example, the New York State Trial Lawyers Association and Defense Association of New York filed amicus briefs on opposing sides of a personal injury action arising under the New York Labor Law. Industry trade groups are also active amicus participants. In ACE Sec. Corp. v. DB Structured Products,² multiple banking and securities industry associations filed amicus briefs in a case involving mortgage-backed securities. Many interest and trade groups have committees that search for amicus opportunities and evaluate requests for amicus participation.

The New York Court of Appeals website (http://www.courts.state.ny.us/ctapps) contains a link to weekly "New Case Filings" which lists recently filed appeals by case title, jurisdictional predicate, subject matter and key issues. Although the issues in this list are derived from Preliminary Appeal Statements processed by the Clerk's office, and thus may never reach briefing or a decision on the merits, their publication may suggest motions for amicus participation to counsel whose clients are interested in the subject matter of these appeals. Indeed, the website indicates that "[t]he Court welcomes motions for amicus curiae participation from those qualified and interested in the subject matter of these newly filed appeals."

To read the full version of this article, please visit the Duane Morris website.

Footnotes

[1] 25 N.Y.3d 117 (2015).

[2] 25 N.Y.3d 581 (2015).

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