Being A Friend Of The Court: Shaping The Law As It Affects Your Business Interests
Indiana Manufacturers Association's Human Resources Memo
May 2005
Brian Paul
Every so often a case will percolate up through the court system that significantly impacts the business community. What do you do, though, if your company isn’t a party to the case, but the case affects your business interests nonetheless? Do you chance it — do you idly stand by while the litigants (who may or may not have your interests at heart) slug it out? There is something your company can do: Be a friend of the court.
Court decisions affect interests beyond those of the parties directly involved, particularly at the appellate level. A rule laid down by an appellate court in one case is binding in similar cases involving similar issues that follow. Appellate courts are reluctant to overturn themselves, so once a rule is formulated it is unlikely to be reversed in the near term. Even rules that turn out to be very bad indeed will often stand for many years before they are scrapped because of the prevailing belief that it is sometimes better to let a bad rule stand than to disrupt the law (and in the process risk undermining the courts’ institutional credibility). In this way the law is like a clay pot: it’s very difficult to shape once it has taken its final form.
So to ensure their voices are heard before the law can become settled, corporations, trade and industry groups, professional associations, non-profits, and other special interest groups frequently file what are called amicus curiae (“friend of the court”) briefs. An amicus brief provides a court with a perspective it won’t otherwise get from the parties. For example, it may discuss the expected economic or social impact of a ruling, it may provide the court with historical context, or it may discuss how courts in other jurisdictions have fielded an issue.
Amicus briefs can and do have a significant impact on the development of the law. A prominent example is the affirmative action cases that the United States Supreme decided in 2003. At issue was whether the admissions plans followed by the University of Michigan’s undergraduate and law schools violated the Equal Protection Clause of the U.S. Constitution. Sixty-five leading American businesses, including Eli Lilly, Dow Chemical, Medtronic, and Microsoft filed an amicus brief urging the Court to uphold both plans. A number of other corporations, including General Motors and IBM, filed their own briefs to the same effect. Indeed, more amicus briefs were filed in these two cases than in any other case previously before the Court. They hit their mark, too: several of the Justices referred to the amicus briefs at oral argument, and the Court cited some of the briefs in its written opinions.
But a case need not have constitutional implications to warrant filing an amicus brief. In fact, many (if not most) cases that warrant filing an amicus brief are cases involving commercial — not constitutional — concerns. Commercial cases are simply more plentiful (and arguably of more practical import); therefore, cases involving the law as it affects insurance, banking, securities, product design and manufacturing, drug and device regulation, as well as many other commercial concerns, frequently attract the attention of amici (or friends). Groups that advocate the interests of their business membership play a particularly prominent role in the case law. The Indiana Manufacturers Association, Indiana Bankers Association, Indiana Chamber of Commerce, Insurance Institute of Indiana, in addition to several other commercially-oriented, Indiana-based organizations have all filed amicus briefs in recent years (as have numerous national organizations).
Under the Indiana appellate rules, an amicus brief must be tendered with a motion in which the tendering party requests permission to appear before the court as an amicus curiae. The U.S. Supreme Court likewise requires amici to file a motion for leave to appear, unless all parties offer their written consent. Acceptance of an amicus brief is discretionary, or, as one judge has put it, “a matter of judicial grace.” But, both the Indiana Court of Appeals and the Indiana Supreme Court are quite receptive to amici, as is the U.S. Supreme Court. While these courts look askance at “me too” briefs — briefs that simply record a group’s “vote” — they welcome briefs that present ideas, arguments, theories, insights, or data not already brought to their attention by the parties.
Getting a brief before the court is half the battle. It is crucial that a potential amicus retain counsel as soon as possible after learning of a significant case. This is important not only because there are rules dictating when amicus briefs can be filed (typically, on or before the due date of the brief of the party with whom the amicus is substantively aligned), but because preparation of a quality brief requires extensive research, as well as careful drafting and multiple revisions. Ideally, an amicus client should hire an attorney at least one month before the deadline for filing the brief with the court. That can be difficult to do, however, unless one is already aware that a case of interest is winding its way through the courts, though that is unlikely: even the most important commercial cases do not typically make the news. But there are ways for lawyers to monitor the dockets for new cases affecting the business community, and their business clients’ interests in particular. Depending on your organization’s needs, retaining an attorney for just that purpose may be appropriate. Alternatively, some advocacy groups monitor the case law as a service to their members. In any event, judicial decisions are part of the public record; thus, it’s simply a matter of having someone identify the important cases early enough to ensure that your business can have a say in their outcome.
For further information, please contact Brian J. Paul.
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