Joanne Geha Swanson discusses the benefits of an amicus brief and how one is best leveraged in the latest issue of the Michigan Bar Journal (February 2021).
As the highest court in the state, the Michigan Supreme Court has discretionary authority to decide which cases it will review. The cases it accepts are typically those that will impact the development of Michigan jurisprudence beyond the particular interests of the parties before the Court. In light of this broader impact, the Court recognizes the importance of considering the views of other non-party stakeholders. Amici curiae – Latin for “friends of the court” – fulfill that role and the Court encourages their participation.
Orders inviting amicus support
The Court’s orders granting leave to appeal or directing a mini-oral argument on the application frequently afford interested parties the opportunity to appear as amici curiae in pending matters. The order may invite briefs from specific organizations known or assumed to have an interest, and/or the order might more generally invite persons or groups to seek permission to participate. These orders are posted on the Court’s website and updated regularly, enabling practitioners to advise their client and the clients professional organizations or industry groups of the opportunity to address issues that will affect their interests. Even absent an invitation, a motion for leave to file an amicus brief in a case that raises an issue of interest may be filed. Such motions are routinely granted.
Once a case has been identified, additional facts and details can be gleaned from the Court of Appeals decision or the application for leave, response, and reply, which are also posted on the Supreme Court’s website. Reviewing these documents may help lawyers and their clients determine whether additional information and argument should be brought before the Court. A call to the lawyer for the party whose interests the client shares is frequently helpful. Most often, the parties welcome the inquiry, and might initiate requests for amicus support themselves.
Clients considering amicus involvement might wonder what value they can add and how much it will cost. These are important questions – the answers to which should be balanced against the impact of a decision adverse to the client’s interests. There are certainly no guarantees as to the effect of amicus briefing in any case, but the one-time investment might well be worth the effort for ensuring that the client’s views have been fully presented.
Read the complete article in the Michigan Bar Journal on page 48.
Joanne Geha Swanson has more than 30 years of experience as a litigator and appellate attorney. She provides strong, rigorous advocacy to clients who must either enforce or defend their rights through litigation. In addition, she counsels clients on how to avoid litigation and resolve disputes without turning to the courts in the first place. Her civil litigation practice primarily involves complex commercial disputes, antitrust, class actions, business torts, legal malpractice and other related matters.
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