Approved by the BBA Council 18 May 2010
Amicus Brief Policy
The Boston Bar Association’s Policy Concerning the Preparation and Submission of Amicus Briefs
Amicus briefs may be filed or, in the case of an amicus brief filed by another party, joined, only on behalf of the Boston Bar Association (the “BBA”) as a whole. To facilitate the consideration of requests that the BBA take a position in a case as an amicus (“Requests”) and the preparation of amicus briefs, the BBA shall have a standing Amicus Committee (the “Committee”) consisting of members appointed by the BBA President. Each year, the BBA President shall appoint a sufficient number of Committee members to maintain a total of at least five members, and may appoint a liaison from the BBA Council. One member shall serve as the Committee Chair at the pleasure of the BBA President. Each member shall be appointed for a three-year term, subject to one renewal. At least two of the members of the Committee must have significant appellate practice experience.
Criteria for Filing Amicus Brief
In determining whether to file or join an amicus brief, the BBA will apply the following criteria (“Criteria”). As a general rule, the BBA will only file or join an amicus brief related to the practice of law or the administration of justice; possible exceptions will be considered on a case-by-case basis. The BBA will not consider any Request to file or join an amicus brief unless there is adequate time to consider the matter. For amicus briefs to be prepared by the BBA, three months is generally needed to obtain the requisite approvals and prepare the brief for submission. For amicus briefs prepared by another party to be joined by the BBA, two months is generally needed to obtain the requisite approvals, with the draft brief to be submitted to the BBA no more than one month before the deadline for filing the amicus brief.
Initial Consideration of the Request by the Committee
Any Request must be made through a form made available by the BBA. The completed form is to be submitted to the Director of Government Relations (“the Director”), pursuant to directions provided by the BBA. The form must require a party submitting a Request to acknowledge its acceptance of the terms of this policy. Upon receipt of the Request, the Director will promptly provide the Request to the Committee.
The Committee will first assess whether the Request meets the Criteria. Should the Request meet the Criteria, the Committee will then request comment from any counsel on the underlying case that has not submitted the Request, and may request comment from one or more BBA Sections and/or BBA Council members who may have experience or expertise in the subject matter of the Request.
The Committee will draft an Executive Summary of the issues and arguments presented in the case and recommend that the BBA file its own amicus brief; join an amicus brief drafted by another entity; or decline to file or join an amicus brief in the matter at issue. The Committee will submit its Executive Summary to the Director, who in turn will distribute it to the members of the Executive Committee.
Should Party Affiliates (as defined in Paragraph 4, below) be seated on the Amicus Committee, they shall recuse themselves from deliberations.
Presentation to the Executive Committee
The Committee’s Executive Summary shall be considered by the Executive Committee, together with any other documents provided by the Committee. No presentations by the parties to the litigation or by individuals connected in any way to the litigation at issue, including by counsel affiliated with the firms, offices or organizations representing the parties involved in the litigation (collectively, “Party Affiliates”), will be permitted. Should Party Affiliates be seated on the Executive Committee, they shall recuse themselves from deliberations
Presentation to the Council
If the Executive Committee recommends that the BBA file its own amicus brief or join an amicus brief drafted by another entity, the Director will forward the Executive Committee’s recommendation to the members of the Council (excluding any Party Affiliates) and notify the BBA Section Chairs of the recommendation.
Any Sections or individuals wishing to provide comment to the Council may submit memoranda to the Director. Party Affiliates shall not participate in the preparation of such memoranda.
A member of the Committee, who may be assisted by a brief-writer designated by the Committee, shall make an oral presentation of the matter to the Council. No presentations by Party Affiliates will be permitted. Should Party Affiliates be seated on the Council, they shall recuse themselves from deliberations.
Voting on the Amicus Request
A majority of the Council must support the Request for it to be granted. The Council may attach specific instructions concerning the drafting of a BBA amicus brief. Similarly, if the Council is considering a Request that the BBA join an amicus brief drafted by another entity, the Council may direct the Committee to convey to the drafters specific BBA preferences on the substance, tone or actual language of the brief.
The President will set a deadline for submission of the draft brief by the Director to the Council, whether it is to be drafted by the BBA or by another entity.
Preparation, Approval, and Filing of an Amicus Brief
If the Council votes in favor of the BBA drafting and filing its own amicus brief in a particular matter, the Committee will arrange for the preparation of a draft brief and will oversee the work of its brief-writer(s). The Committee Chair will be responsible for ensuring that the draft is submitted to the Director by the deadline set by the President.
If the Council votes in favor of the BBA joining an amicus brief drafted by another entity, the Committee Chair will be responsible for providing any information necessary to the drafters of the brief to carry out that purpose, and for obtaining a draft of the brief to submit to the Director by the deadline set by the President.
Final Council approval of the final brief is required before a BBA amicus brief may be filed, or before the BBA may be added as an amicus on a brief drafted by another entity. Consistent with Section 1 of Article IX of the BBA By-Laws, the Executive Committee may approve an amicus brief in the Council’s stead “if the Executive Committee determines that a decision should be made before it is practicable to hold a meeting of the Council.”
The BBA maintains complete control over its position in any case, even if that position is adverse to the party that submitted the Request. Should the BBA decide not to file a brief in response to a Request, such a decision does not indicate any position by the BBA on the pertinent issues. The BBA considers it inappropriate for a party to reference the BBA’s decision not to file a brief in any brief or argument to a court or agency.
Any Request or submission a party makes may be shared with anyone, including counsel representing the parties in the matter and third parties. Without limiting the generality of the foregoing, any Request or submission may be shared with the BBA Executive Committee and/or BBA Council at an earlier time than is set forth in the procedures contained in this Policy.
At any time, any body making any determination under this Policy may review any materials or consult any person that it may deem appropriate.
At any time, in consultation with the BBA President, the Committee may designate one or more persons to act as brief-writer(s) and include such persons in the deliberations of the Committee.
The BBA may make its amicus brief available to the general public, including via the BBA’s website.
All publicity concerning any BBA amicus brief, including any requests for statements from the media, shall be referred to the BBA’s Communications Office in the first instance unless otherwise directed by the BBA Communications Office or the BBA President.