New rules on amicus curiae briefs: amicus participation: avoiding the fish-eyed stare.

• Jurisdiction: United States
• Date: 01 April 2007
• Author: Burlington, Philip
• Published date: 01 April 2007
• Author: Burlington, Philip

The role of amicus curiae in the judicial process has changed over time, and the recent amendments to Rule 9.370 recognize that evolution. An examination of the provisions of that rule provides an opportunity to address those changes, as well as the courts' concerns and expectations regarding the parameters of amicus participation.

In 2002, the Florida Supreme Court completely rewrote Rule 9.370, adopting the proposed rule submitted by The Florida Bar Appellate Rules Committee. (1) The new rule retained the provision that an amicus curiae brief could be filed only by leave of court or by consent of all the parties. However, in its opinion, the court specifically requested that the committee study whether, despite the disjunctive language in that clause, leave of court should always be required. (2) In 2005, upon the recommendation of the committee, the Florida Supreme Court amended Rule 9.370 to eliminate the provision that an amicus brief could be filed by consent of all the parties. (3) The rule was amended again, effective January 1, 2007, solely to address technical issues in subsection (c) regarding service of the amicus brief. (4)

Rule 9.370 currently requires a motion for leave to file an amicus brief to identify 1) the movant's interest; 2) the particular issue to be addressed; 3) how the movant can assist the court in its disposition of the case; and 4) whether all parties consented to the filing of the brief.

The requirement that the movant identify his or her interest in the proceedings reflects the most fundamental shift in the role of amicus curiae over the last century. The original description of an amicus curiae was an impartial individual, usually a lawyer, who advised the court regarding an interpretation of the law solely for the benefit of the court, and not for the benefit of any litigant. (5) However, now an amicus is expected to have some interest in the case and, in fact, there is precedent that a proposed amicus with no cognizable interest should be denied leave to appear. (6)

The most common amicus curiae consist of industry or public interest groups who have a unique perspective or expertise that can assist the court in its disposition of the case. (7) However, concern has been expressed that such briefs "are often attempts to inject interest-group politics into the ... appellate process by flaunting the interest of a trade association or other interest group in the outcome of the appeal." (8)

Another authorized category of amicus curiae is an individual or entity that has an interest in some other case that may be affected by the court's decision, even if only by its precedential effect. (9) However, a party will not be granted amicus curiae status if it has a direct interest in the litigation that would have permitted it to have intervened in the proceeding. (10)

Subsection (a) of Rule 9.370 also requires the motion for leave to identify the particular issue(s) to be addressed in the amicus brief. These issues must be derived from the briefs of the parties to the litigation, since an amicus does not have standing to address issues not raised by the parties. (11)

The motion for leave to appear must also explain how the movant can assist the court in its disposition of the case. (12) Courts have expressed concern with amicus curiae briefs that simply restate the arguments of the party they support. (13) These can include collecting background or factual references that merit judicial notice or presenting arguments informed by a particular expertise, such as that of an industry or public interest group. Additionally, an amicus can assist by arguing points that may be too far reaching for emphasis by a party intent on winning a particular case or by explaining the impact a potential holding might have on an industry or other affected group. (14)

Subsection (b) of Rule 9.370 addresses the contents and form of the amicus brief and states that the brief must comply with Rule 9.210(b), but should omit a statement of the case and facts and may not exceed 20 pages. This provision is consistent with the preexisting case law holding an amicus...