An amicus curiae -- or "friend of the court" -- is a person or organization that is not a party to the appeal but who submits a brief to an appellate court. Typically, the amicus must apply for permission from the appellate court before submitting the brief. But once the brief is submitted, the amicus may want to participate in oral argument. As the following discussion shows, sometimes this is a good idea; other times it is not.
Date sent: Mon, 9 Jun 1997
As a general matter, what do people think about amici presenting oral argument? What sort of amicus argument would be most helpful?
Date sent: Mon, 9 Jun 97
My preference would be to dissuade amici from oral argument. The usual function of amici is to bring to the court's attention policy arguments overlooked or underemphasized by the parties. To the extent that the amicus brief is persuasively written, it should make these points effectively in that context. My fears concerning oral argument would be that (1) time granted to amici would somehow lessen the impact of the argument on behalf of the party for whom the brief was filed; (2) amicus counsel would be drawn into a discussion of the facts; or (3) opposing counsel would be given an additional wedge to drive between the amicus and the assisted party.
Date sent: 9 Jun 97
I participated as amicus in the Florida Supreme Court approximately two years ago on a question of the appealability of non-final orders in criminal cases, representing a couple of voluntary bar associations. The court allowed me to participate in oral argument, and I divided the time with counsel for the party. The Court was receptive and we ultimately prevailed. By dividing the argument into "nuts and bolts" (by the party) and "policy" (by the amicus), I think that we set a good tone.
Date sent: 9 Jun 97
I agree. Focus on policy. The larger problem in California seem to be the proliferation of amici and resulting hoarding of valuable oral argument time by the named party. In other words, with more than one "friend" how does the party share and share-alike. It is a problem I have yet to conquer with my kids.
Date sent: 9 Jun 97
I believe there is a recent rule change in California which sustantially curtails the right to oral argument at the Supreme Court, and I believe it specifically applies to amicus counsel.
Date sent: 10 Jun 97
The [California Supreme] court does not give any "extra" time to amici, but parties who wish to share their 30 minutes with an amicus can do so. The new rule prohibits the splitting of a party's oral argument time into segments of less than 10 minutes. It's a good rule, because it eliminates the practice of an atty standing up, clearing his or her throat, making a point or two, and having to sit down because the 2 or 5 minutes allotted are up.
Date sent: 10 Jun 97
It is difficult to answer your question without knowing more about the case, but I would say that, in general, the courts before which I have practiced expect amici counsel to address broader social concerns than they might listen to from counsel for parties actually involved in the fray. I think they suspect (perhaps rightly) that such arguments from the latter source are tainted at best and contrived in most cases.
Date sent: 10 Jun 97
In West Virginia, where the rule is the same, the Court traditionally grants very few such requests. Chances are greater if the amicus has a distinct point of view or interest, and particularly if the amicus actually takes a different position than other parties. One practical factor which has militated against granting permission in my experience has been the presence of a large number of amici, in which case the court fears granting permission to one without granting it to all. In such situations, it might help to offer a single lawyer to argue orally on behalf of all or most of the amici. Generally speaking, I believe briefs and arguments which simply rehash issues briefed and argued by the parties get little attention from appellate courts.
Date sent: 11 Jun 97
My experience clerking on the [California Supreme] court is that the Court will find amici oral argument valuable only if it can cover issues that can not or are not covered by the parties counsel and amici's issue is germane to the large policy question surrounding the case.
The above discussion was taken from the Appellate Law Discussion list and edited.
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