Paul D. Hudson on the Amicus Brief
By Steve Thorpe
sthorpe@legalnews.com
Amicus briefs sometimes play a starring role in precedent-setting decisions. They can ensure that a court considers a particular perspective on important issues before it hands down a decision. Miller Canfield attorney Paul D. Hudson’s principal practice areas are complex commercial litigation and appellate litigation. He has briefed and argued cases in the state and federal appellate courts, and has authored amicus briefs on behalf of business and industry organizations in the Michigan Supreme Court. Before joining Miller Canfield, he served as a law clerk for the Honorable Raymond M. Kethledge of the United States Court of Appeals for the Sixth Circuit.
Thorpe: What is the historical origin of the amicus brief?
Hudson: Amicus curiae briefs have deep roots, dating back to English common law and Roman law before that. The first appearance in the United States Supreme Court came in the early 1820s, and amicus briefs have grown in importance and prevalence in the years since.
Thorpe: How has its role in the law evolved?
Hudson: Early on, the “friend of the court” was supposed to be just that — a disinterested and dispassionate bystander who brought to the court’s attention information such as little-known precedent that might have escaped the court’s attention. They didn’t have Westlaw back then, so the role was to serve as a sort of backstop against legal error — a bit of legal crowdsourcing, if you will. Over time, the amicus curiae has evolved from a disinterested reference guide to an advocate for a particular position or cause. To be sure, some of the original role remains, and some of the best amicus briefs maintain a neutral posture toward the litigants and outcome of the case, but the modern amicus brief is much more of an advocacy piece than it was in years past.
Thorpe: Tell us about significant cases where amicus briefs played a major role.
Hudson: One famous example is the U.S. Supreme Court’s decision in Mapp v. Ohio, a landmark 4th Amendment case where the court adopted a position that neither party advocated and that was raised for the first time in an amicus brief by the ACLU. That happened again in a case during the court’s 2011 term, over some grumbling from the dissent. Amicus briefs have taken on increasing importance, and the U.S. Supreme Court has cited an amicus brief in more than 50 percent of its opinions in recent years. Potential amici have taken notice — high-profile cases can attract more than 50 amicus briefs in the U.S. Supreme Court. And the practice is certainly not limited to the U.S. Supreme Court — the Michigan Supreme Court and Michigan Court of Appeals regularly accept and even solicit amicus participation in a whole host of cases.
Thorpe: What ingredients can make an amicus brief more persuasive? Any “land mines” to avoid in an amicus brief?
Hudson: An amicus brief should offer a fresh perspective. The parties to a case are concerned mostly with the results — win or lose, affirm or reverse — and often don’t much care how the court gets there. An amicus party can offer the court a broader view of the case and explain how the court’s decision or reasoning will affect people well beyond the litigants whose names appear in the caption. The worst amicus briefs simply rehash the arguments of the parties and become nothing more than extra homework for the judges and their clerks. The best amicus briefs draw upon the “friend of the court” tradition while persuasively advocating the organization or entity’s position.
Thorpe: Tell us about the conference on amicus briefs you’re conducting on May 9.
Hudson: Former Chief Justice of the Michigan Supreme Court Clifford Taylor, now a Miller Canfield attorney, is going to offer a unique insider’s perspective on how to use amicus briefs to protect your business or organization’s interests. It’s important for Michigan businesses and organizations to know that there are cases affecting their interests every term in the Michigan courts — and that they have an opportunity to have their voices heard in those cases even where they are not parties. Justice Taylor, Miller Canfield appellate practitioner Matthew Leitman, and I are holding a free informal breakfast discussion in Bloomfield Township on May 9 at 7:30 a.m. Those interested in attending should contact me at 313-496-7597 or hudson@millercanfield.com.
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