Q: What is an “amicus brief”?
A: On appeal, an “amicus brief” – otherwise known as a “friend of the court” brief – is submitted by a non-party to the case, whether that be an individual, organization, or government entity. Amici are permitted by the court to offer information, expertise, insight, or legal arguments to help the court decide the matter on appeal, and typically do so in high-stakes litigation. Amici typically make policy arguments advising how a certain decision on the matter will benefit or harm those who are not before the court. They might take a neutral stance on the outcome of the case, but more often, they advocate for a particular party or outcome.
One example of a non-neutral amicus brief might be a professional association – say, for doctors or attorneys – that wants to have its perspective heard on a case that would make law concerning what is or is not covered under certain language of professional insurance policies.
A neutral amicus brief, on the other hand, does not advocate for one party or outcome over another, but might urge the court to reject certain arguments made by one side. For example, the United States or a state might file an amicus brief to explain how a ruling will affect a statutory or regulatory scheme. This is common where the government is not a party, but administers the law at issue. Another amicus might file a neutral brief in an effort to avoid a broad ruling that would spill into other contexts beyond the dispute at hand.
Both state and federal appellate courts permit amicus briefs, governed by different rules. Under the federal rules, amici who are not certain government entities have to disclose whether counsel for a party to the appeal assisted in writing the brief (in whole or in part), and whether anyone besides the amicus contributed money intended to fund writing the brief. New Hampshire’s Supreme Court does not have these specific requirements.
An appellate attorney can assist you in determining whether you or your organization should consider filing an amicus brief in a particular case. An amicus brief can help a court understand different perspectives that are not expressed by the parties to the case, and assist the court in reaching a more just outcome for those individuals who are not before the court.