#whostosayanything

[friendshipmeanslove]

With Friends Like These, Who Needs Friends..?

FRENEMIES OF THE COURT: THE MANY FACES OF AMICUS CURIAE Helen A. Anderson

"Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justifiability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners."

"If you ask any lawyer what an  “amicus curiae” is, and you will be told that the term means “friend of the court.” The term has positive, even warm, connotations." Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. But how, can a person being paid off by a company or called in by counsel ever be acting as a true friend. The types of organizations and individuals who will participate as amicus also vary, ranging from activist or public advocacy groups, nonprofits corporations, business alliances, and political organizations, to individuals  concerned about the issue or the outcome of the case. This may take the form of legal opinion, testimony or learned treatise (hence not a true accusation) and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court.

Anderson argues that the term 'friend of the court' is distorting and discrediting to the original presence of the amicus. Evidently she feels the term friend is too broad to suffice as a person to be called in to provide some sort of information or testimony that can somehow validate or help in the decision making. She explains how the new found increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation, to a general person or 'friend' being able to contribute to the case. Anderson's major argument dictates that the Supreme Court’s open-door amicus policy should not be so carelessly left open. She feels that with the 'friend of a party' ability, ambitious law reform and business advocates may exert great influence, particularly on elected courts (that may not actually be beneficial). Her greatest concern seems to be that with the term 'friend' being a part of the court system, the appellate decision making, can be distorted due to the negligence of appropriate experts being called. She feels that the original amicus must be persevered and remain concretely with experts and 'appropriate' people for the case. She states "courts should exercise their gate keeping authority." In other words, keep your friends out of the court, and stick to the people who know what their talking about and will not or cannot jeopardize an entire case.

In terms of high profile cases, which Supreme Court Cases almost always are, I agree with her stance. However, the term 'friend of a court' does not have to branch as far as an acquaintance who runs a non-profit that can possibly advocate for you. In terms of keeping things business related, I believe Professor Anderson has a point. To make sure that the friend of a part does not become anything relevant to lobbying, the courts system must be more strictly defined with whom is allowed to participate in the amicus curiae.

Although, in opposition I believe that sometimes the term 'friend' can be contorted out of context, especially in such a high profile, business environment. While the term amicus curiae is mainly to give our society the rights they deserve (a fair trial, with dutiful witnesses), the Latin translation into 'friend' of the court does not literally mean a FRIEND. Those professionals, experts, non-profit works, etc. called to be a part of an amicus case are not necessarily the same people you send Christmas cards. I believe that while Anderson makes valid points about the importance of keeping the public sphere away from the private in terms of courts and friends, the term friend is always up for interpretation. In all reality, it should be evident that those called to testify or contribute to a court case are not or should not be there to be actual friends. They are really there to help. And while some may argue that those willing to bend over backwards to help you, are indeed friends, perhaps when your dealing with a public, business environment, the term friend just doesn't fit in the most appropriate way.

#amicuscuriae #friendsofthecourt #notreallyfriends #butwhodefinesfriend #whostosayanything