November 12, 2009

Amicus Briefs For Nonprofit Organizations

5 min

I. What Is an Amicus Brief?

* Brief by an independent party – not a party to the case – that discusses facts and law in a case.

* Provides a way to introduce facts that have a bearing on the dispute, even if such facts are not introduced into evidence by the parties. Because the facts introduced by amici are not evidence in a case, they are not subject to cross-examination (though they may, of course, be challenged by opposing parties and amici). Amicus briefs provide an advocate’s view of the facts.

* May play an important role, providing “real world” context and a broader perspective for judges who will decide the case. Judges may appreciate having such context and perspective, and may value amici’s viewpoint as less parochial than the evidence and arguments advanced by the parties. A well-known example is the amicus briefs submitted by both the business community and retired, high-ranking military officers and civilians in support of the University of Michigan’s affirmative action program in Grutter v. Bollinger, 539 U.S. 206 (2003). In upholding the constitutionality of narrowly-tailored, government-administered affirmative action programs, the Supreme Court cited the “real,” “not theoretical,” benefits of diversity laid out in both briefs.

II. Situations in Which Nonprofit Organizations Might Face the Question Whether to File an Amicus Brief

* Organization-driven – organization recognizes that an issue being addressed in the courts implicates its mission and affects its constituents and supporters (e.g., the constitutionality or interpretation of a statute that an organization either wants or does not want vigorously enforced)

* Bottom up, member-driven: initiated by members of the group, to help represent their interests on an important issue.

* Top down, member-driven: A significant member of the group that is locked in litigation asks the group to help it to win the case.

III. Advantages for Nonprofits

* Advances the mission of an organization in a tangible way, as many issues of fundamental importance to organizations and their constituents and supporters play out in the courts

* Demonstrates to an organization’s constituents and supporters that the organization is actively looking for and finding ways to promote their interests

* May serve the interests of a major supporter in a time of need

* Provides an effective form of advertising and promotion

# Constitutes a demonstrable statement of an organization’s interests, providing a measurable way to promote the organization and position it on issues important to its constituents and supporters

# May be used for promotional purposes in many ways – e.g., send to constituents and supporters as an example of actions the organization is taking on their behalf; give to potential new constituents and supporters as an example of the organization's activity; post on website to demonstrate organization's position on an issue.

# May be used in different advocacy contexts – e.g., often submitted to Congress after the fact as a cohesive statement of an organization’s position on an issue affecting legislation. The goal with every use of the document is to show supporters and other groups that the organization is actively involved in an important policy issue, that it is an effective participant, and that it knows how to represent its supporters and effectively advocate for them.

IV. Potential Disadvantages for Nonprofits

* Cost

# However, especially for bigger organizations, amicus briefs remain relatively cheap (ballpark of $20k, depending on complexity of the issue), as law firms love to get involved in interesting cases and will often discount their rates.

# Also, some large organizations have a war chest set aside in their budgets for amicus briefs funded from general revenues. If not, executives of the organization will need to raise funds on a case-by-case basis. If that is the case, keep the following in mind: (i) if it is an issue that affects one of an organization’s members or supporters, and that member or supporter wants the organization to file, the organization can't simply accept money from the member or supporter. The funding must be independent of the person or entity supported. You must raise funds from other supporters of group who share the same interests; and (ii) a related concern is that there may be a potential conflict among members, in which case it may not be possible to file a brief.

* Formulating the position requires the time and effort of an organization’s officials and/or employees. The organization must work with the lawyers to develop what points it wants to make and how best to make them, and must review drafts of the brief to ensure that it effectively presents the organization's views. (This is not necessarily a disadvantage; it may well be seen as vital to promoting the organization’s mission.)

V. Internal Approval Processes

* Although an organization may not have a formal process for determining whether to file an amicus brief, some organizations use committees that are given authority to review requests for amicus participation. Such committees may consist entirely of staff or may include external supporters.

* Organizations should be selective.

# Like any other kind of branding or advertising, an organization doesn't want to be profligate and say "yes" to every request that comes along. Committees, both formal and informal, should screen opportunities and try to maximize the organization's impact by participating only in a small number of cases that substantially advance its goals and are of great concern to its supporters.

# Apply the smell test. An organization doesn't want to support a position and thereby appear to endorse a litigant whose actions the organization or its supporters don’t agree with or are disreputable and might cause a problem with supporters.

*  *  *  *