Proper Scope Of Amicus Briefs

• Published date: 13 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Dickinson Wright PLLC
• Author: Mr Phillip DeRosier

When significant issues are pending before a court, especially an appellate court, it is common for interested parties to submit amicus briefs in order to offer their own unique perspective. In fact, one of the many important roles that MDTC serves is to submit amicus briefs in cases impacting its members. And most courts welcome helpful amicus briefs. As the Michigan Supreme Court long ago remarked, '[t]his court is always desirous of having all the light it may have on the questions before it. In cases involving questions of important public interest, leave is generally granted to file a brief as amicus curiae.' City of Grand Rapids v Consumers' Power Co, 216 Mich 409, 415; 185 NW 852 (1921). But what is the appropriate role of an amicus brief? May it raise new issues or inject new facts?

The Role of Amicus Briefs

The general rule is that a good amicus brief should strive to assist the court by shedding additional light on the questions before it, and not seek to raise new issues or expand the record on appeal. While it has sometimes been criticized as offering too narrow a view, then-Chief Judge Posner's in-chambers opinion in Ryan v Commodity Futures Trading Comm, 125 F3d 1062 (CA 7, 1997), is often cited for its overview of the criteria for a useful amicus brief. In Judge Posner's view, amici should offer 'unique information or perspective that can help th[e] court beyond the help that the lawyers for the parties are able to provide.' Id. at 1063. They should not merely 'duplicate the arguments made in the litigants' briefs.' Id. After all, '[t]he term 'amicus curiae' means friend of the court, not friend of a party.' Id. See, e.g., WildEarth Guardians v Zinke, 368 F Supp 3d 41, 59 (DDC, 2019) (denying motion to file amicus brief because it did not offer anything beyond the parties' own briefs).

Limits on Amicus Briefs

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