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AMICUS CURIAE
AMICUS CURIAE
Meaning
Amicus Curiae (plural amici curiae) is a legal Latin phrase, literally translated as “friend of the court”, that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.
Black’s Law Dictionary (6th Edition) defines Amicus Curiae to literally mean friend of the court. A person with strong interest in or views on the subject matter of an action, but nor a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. Such briefs may also be filed by private persons or the government. In appeals to the U. S. courts of appeals, such brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.
The Law lexicon states that Amicus Curiae is one, who voluntarily or on invitation of the court instructs the court on a matter of law concerning which the latter is doubtful or mistaken or informs it of facts, a knowledge of which is necessary to a proper disposition of the case. Counsels in Courts frequently act in this capacity when they happen to be in possession of a case or authority which the judge has not seen or does not at the moment remembers. Amicus Curiae is heard only by the leave and for the assistance of the court and upon a case already before it. Amicus Curiae may instruct, inform or move the court on any matter of which the court may take judicial cognizance.
History
The Amicus Curiae originated in Roman law. Starting in the 9th century, it was incorporated to British law, and was later extended to most of common law system including Indian legal system. Later, it was introduced in international law, in particular concerning human rights. From there, it was integrated in some civil law systems (it has recently been integrated in Argentina). Today, it is used by the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
Role
The role of an Amicus Curiae is often confused with that of an intervener who has a direct interest in the outcome of the lawsuit. The role of an Amicus is as stated by Salmon LJ (as Lord Salmon then was) in Allen V. Sir Alfred Mc. Alpine & Sons Ltd.[2] where he said :
“I had always understood that the role of an Amicus Curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal argument on his behalf.”
An Amicus Curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An Amicus Curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.
The most common arena for Amici Curiae is in cases that are under appeal (are being reconsidered by the court) and where issues of public interest – such as social questions or civil liberties – are being debated. Cases that have drawn participation from Amicus Curiae are those involving Civil Rights, Capital Punishment, environmental protection, gender equality, infant Adoption, and Affirmative Action. Amicus Curiae have also informed the court about narrower issues, such as the competency of a juror; or the correct procedure for completing a deed or will; or evidence that a case is collusive or fictitious – that is, that the parties are not being honest with the court about their reasons for being there.
The privilege that friends of the court are granted to express their views in a case is just that. Amici Curiae have no right to appear or to file briefs. Unless they represent the government, Amicus Curiae must obtain leave (permission) to do so from the court, or consent of all parties in the case, before filing. No court is obligated to follow or even to consider the advice of an Amicus Curiae, even one it has invited.
The principle that guides the appropriate role of a friend of the court is that he or she should serve the court without also acting as “friend” to either of the parties. Rules of court and case law (past court decisions) have attempted to spell out the sometimes tricky specifics or how an Amicus Curiae should – and should not – participate in a case. For example, Missouri’s Supreme Court in 1969 distinguished the role of Amicus Curiae from the normal role of the attorney in assisting the court. In this case, a US court requested the attorney who had formerly represented the parties in the case to help elicit testimony and cross-examine witnesses. The lawyer also made objections and argued objections against the city, which was defending the lawsuit over Zoning. In seeking the payment of attorney fees for his services, the attorney argued that he had served as Amicus Curiae due to his acting at the court’s request. The US Supreme Court found that “in the orderly and intelligent presentation of the case, he rendered assistance to the court, the same as any attorney who contributes to the orderly presentation of a case. He was appearing, however, not as an adviser to the court but as a representative of private litigants……advancing their partisan interests……. and is not entitled to have the fee for his admittedly valuable and competent professional services taxed as costs” (Kansas City v. Kindle, 446 S.W. 2d 807 [Mo. 1969]).
The Amicus Curiae walks a fine line between providing added information and advancing the cause of one of the parties. For instance, she or he cannot raise issues that the parties themselves do not raise, since that is the task of the parties and their attorneys. If allowed by the court, Amici Curiae can file briefs (called briefs Amicus Curiae or Amicus briefs), argue the case, and introduce evidence. However, they may not make most motions, file pleadings, or manage the case.
Whether participating by leave or by invitation, in an appearance or with a brief Amicus Curiae, a friend of the court is a resource person who has limited capacity to act.
Position in India
In India, an Advocate is appointed as Amicus Curiae by the Court on receipt of a petition received from the jail or in any other criminal matter if the accused is unrepresented in order to defend and argue, the case of the accused. In civil matters also, the court can appoint an Advocate as Amicus Curiae if thinks it necessary in case of an unrepresented party. The court can also appoint Amicus Curiae in any matter of general public importance or in which the interest of the public at large is involved. The Supreme Court in the case of Rishi Nandan Pandit Vs. State of Bihar has held that a court of appeal can appoint a Counsel at the cost of the state in a case where the Counsel of the accused is absent. The court held as under :-
“If the Counsel is absent, there is nothing in law, which precludes the court of appeal from appointing another Counsel on state’s expense to assist the court.”
The Amicus Curiae when appointed, is entitled to demand full details, which inter alia may include evidence adduced in the trial court and the Registry of the Supreme Court is under an obligation to make such records available to the Amicus Curiae.
About the Author
Deepshikha Singh
Final Year law student, symbiosis law school, Pune, India
User’s Guide: Amazon Kindle
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