AMICUS CURIAE
Monday, January 23, 2012 11:12
AMICUS CURIAE
Meaning
Amicus Curiae (plural amici curiae) is a legal Latin phrase, literally translated as “friend of the court”, that refers to somebody, not a party to a case, who volunteers to supply information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The info might 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 choice whether or not to admit the info lies with the discretion of the court.
Black’s Law Dictionary (6th Edition) defines Amicus Curiae to literally mean friend of the court. A individual with strong interest in or views on the subject matter of an action, but nor a party to the action, may possibly petition the court for permission to file a brief, ostensibly on behalf of a party but in fact 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 instances. Such briefs could also be filed by private persons or the government. In appeals to the U. S. courts of appeals, such brief could 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 1, 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 required to a proper disposition of the case. Counsels in Courts often 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 just before it. Amicus Curiae could instruct, inform or move the court on any matter of which the court could take judicial cognizance.
History
The Amicus Curiae originated in Roman law. Beginning in the 9th century, it was incorporated to British law, and was later extended to most of typical law system such as Indian legal system. Later, it was introduced in international law, in specific concerning human rights. From there, it was integrated in some civil law systems (it has recently been integrated in Argentina). Nowadays, it is employed 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 often understood that the role of an Amicus Curiae was to support the court by expounding the law impartially, or if 1 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 info, or raises awareness about some aspect of the case that the court may well otherwise miss. The individual is normally, but not necessarily, an attorney, and is typically not paid for her or his expertise. An Amicus Curiae should not be a party to the case, nor an attorney in the case, but should have some knowledge or perspective that makes her or his views valuable to the court.
The most typical arena for Amici Curiae is in instances that are under appeal (are being reconsidered by the court) and where problems of public interest – such as social questions or civil liberties – are being debated. Instances 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 process 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 factors 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 appropriate to appear or to file briefs. Unless they represent the government, Amicus Curiae ought to 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 take into account the advice of an Amicus Curiae, even 1 it has invited.
The principle that guides the appropriate role of a friend of the court is that he or she need to serve the court with out also acting as “friend” to either of the parties. Rules of court and case law (past court decisions) have attempted to spell out the occasionally tricky specifics or how an Amicus Curiae must – and must not – participate in a case. For example, Missouri’s Supreme Court in 1969 distinguished the role of Amicus Curiae from the typical 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 aid 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 supplying added data and advancing the trigger of one of the parties. For instance, she or he can’t raise problems that the parties themselves do not raise, since that is the job of the parties and their attorneys. If allowed by the court, Amici Curiae can file briefs (known as briefs Amicus Curiae or Amicus briefs), argue the case, and introduce evidence. Even so, they may possibly not make most motions, file pleadings, or manage the case.
Whether or not participating by leave or by invitation, in an appearance or with a brief Amicus Curiae, a friend of the court is a resource individual 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 needed in case of an unrepresented party. The court can also appoint Amicus Curiae in any matter of general public significance 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 price 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 one more 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 readily available to the Amicus Curiae.