Friending the court


So after filling out a boatload of forms, waiting six months and for a mere $1050 fee (that's not a typo – $1050.00), I have now sworn faith and allegience to Massachusetts.

I could muse upon the Maine-Mass relationship (e.g., our origins as a part of Mass explains why we call our highest court the Supreme Judicial Court even though, unlike in Mass, the "judicial" term is superfluous); the differences between the Maine Constitution and that of Massachusetts (quite a lot, from the get go — I have two thick volumes of the debates and journal from 1819-20 sitting on my counter that are as interesting to read as the materials from the second Maine Constitutional convention, in which Pierce Atwood's own Fred Scribner participated); and various other similarities and differences in procedure and substance, but for brevity's sake, let me just cite one thing the Mass SJC does that I think is a good idea and no harm would come from following suit in Maine.

The Mass SJC regularly issues requests for amicus briefs.  So, for example, the January 17 Mass Law Weekly lists 5 appeals being heard in March, with a little summary of the issue in each, in which the SJC invites amicus briefs to be filed two weeks before the first day of the sitting. 

I think this is a great idea for multiple reasons.  First and foremost, it helps avoid the problem of not knowing when there's something in front of the SJC the outcome of which could have a big impact on your client(s), and not having an opportunity to provide a perspective about the implications relating to that pending issue.  You can check the oral argument summaries on line for the Maine SJC, but they can be rather general, and if the request is coming from the Court itself, then very intelligent people have already scouted out for you and are alerting you that something with potential impact beyond that specific case is being adjudicated, in which the resolution is not so clear cut that some input could make a difference.  

And when the court invites the briefs, you aren't put in the quandry of moving to file your amicus brief, typically with the brief attached, and so doing all the work without knowing if the court thinks such a brief could be useful.  If the court says we'd like some input on a topic, then you can concentrate on making the product as useful to them as possible.  

The SJC would not be inundated with briefs, if only because it only asks for them in cases for which it wants some input; and if 100 briefs do somehow come in, it doesn't have to keep EVERY one under its pillow and memorize it.  An amici brief is just that – it's supposed to be a friend of the court.  So why not identify cases in which an amicus brief might be helpful, post the request and circulate it to the bar, and see what happens?

I have a friend in another state who loves to file amicus briefs before his court; I think it's fun, too.  (This is one of the signs of Appellatitis – how you figure out you were meant to be an appellate lawyer.)  You get to focus on a specific perspective, cut right to the chase of an argument, keep it short and snappy, and talk about something with the Court that interests you.

I understand that the Mass SJC, unlike Maine, hears discretionary appeals, and so there may be more candidates for amici participation before the Mass Court than in Maine.  But since the Maine SJC gets both the wheat and the chaff, I don't see a downside in amici-ing the wheat in the appropriate case.