Civil & Criminal Litigation

Amicus Curiae Briefs

It is possible that there is a pending lawsuit somewhere in North Dakota in which the outcome could have a significant impact on you or your business, even if you are not a party to the lawsuit.  There is a tool in the law that potentially lets you voice your concern in the case so that the court can be made aware of how the case’s outcome will affect you.  That tool is called an amicus curiae brief.

Amicus curiae is a Latin term meaning “friend of the court.”[1]  An amicus curiae has been defined as “[s]omeone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.”[2]

Amicus briefs are commonly submitted in cases argued in the United States Supreme Court.  Although relatively less common, amicus briefs are also allowed in other federal and state courts.  It would be rare to see an argued case in the United States Supreme Court without one or more amicus briefs on file.[3]  On the other hand, it is rare to see an argued case in the North Dakota Supreme Court with an amicus brief on file.

Amicus briefs are most common at the appellate level.  The North Dakota Supreme Court has a rule governing amicus briefs in appeals before the court.[4]  A person or entity wishing to file an amicus brief must first file a motion for leave to file the amicus brief.[5]  The motion may be accompanied by the proposed amicus brief and must state the amicus curiae’s interest and the reasons why an amicus brief would be helpful to the court.[6]

Although there are no specific rules governing the use of amicus briefs in North Dakota state district courts, it appears that some district courts in the state have allowed amicus briefs.[7]  Unlike North Dakota’s state district courts, North Dakota’s federal district court specifically allows amicus briefs by rule.[8]

There are differing perspectives within the legal community on the utility and impact of amicus briefs.[9]  Most lawyers and judges tend to be moderately supportive of amicus briefs because amicus briefs can present arguments and authorities not found in the parties’ briefs.[10]  Amicus briefs can also provide important technical or background information that the parties have not provided.[11]  Those who have a positive view of amicus briefs can point to the frequent citation of amicus briefs in United States Supreme Court opinions to support their position.[12]  Others in the legal community, however, believe that amicus briefs provide little or no assistance to judges because they largely duplicate the arguments made by the parties and are a nuisance to judges and their staff.[13]

Because amicus briefs are filed much less frequently in North Dakota state court cases compared to United States Supreme Court cases, they might be more helpful and impactful for the court in a North Dakota state case than they would be in a United States Supreme Court case.  If you know of pending litigation where the outcome could affect your interests, contact Ohnstad Twichell to learn more about amicus curiae briefs.

 

Disclaimer: This article’s content is intended for general informational purposes only.  Readers should not rely on this article for legal advice.  Laws, regulations, and information change frequently, and the article’s content may not be current.  This law firm makes no warranties, guarantees, or representations about the content of this article.  By using this website and reading this article, you understand that there is no attorney-client relationship between you and the author or Ohnstad Twichell, P.C.  Readers should consult with a licensed attorney in their state concerning their own situation with regard to the reader’s specific legal questions.

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[1] Amicus Curiae, Black’s Law Dictionary (11th ed. 2019).

[2] Id.

[3] Joseph D. Kearney and Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 744 (2000).

[4] N.D.R.App.P. 29.

[5] N.D.R.App.P. 29(a)(2).

[6] N.D.R.App.P. 29(a)(3).

[7] See People to Save the Sheyenne River, Inc. v. North Dakota Department of Health, 2004 WL 4964095 (N.D. District Court, Barnes County); Oster v. North Dakota Public Service Commission, 1999 WL 35034531 (N.D. District Court, Burleigh County).

[8] D.N.D. Civ. L. R. 7.1(G).

[9] Kearney & Merrill, supra note 3, at 745.

[10] Id. 

[11] Id. 

[12] Id. 

[13] Id.