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

• Author: Burlington, Philip
• Position: Florida

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...