Wednesday, August 21, 2013

Let’s Just Be Friends

“This passion, and the death of a dear friend,
would go near to make a man look sad.”

Snide aside from Duke Theseus while watching the Mechanicals
do their best to put on a play in honor of his nuptials
A Midsummer Night’s Dream

“Let’s just be friends.” We all know that request is the kiss of death, best be translated as: “Please get the hell out of my life, immediately if not sooner.” Yet friendship, true friendship, is the glue that holds humanity together.
So let’s reflect a moment on “amicus curiae” aka “friend of the court” briefs.
The concept of an amicus curiae dates back to Roman times (thus the Latin). The idea was that, sometimes, a body charged with dispensing Justice can really use a friend—some entity who is not involved in the fight who can provide the Court with a bit of perspective—objective perspective, that is.
Nowadays, “amici curiae” tend to be entities who, though not parties to a particular legal dispute, nonetheless have a subjective interest in how the fight gets resolved. Their goal is to weigh in and provide the court, if it is receptive, with a sense of how resolving a particular case will have repercussions, how the outcome will affect the interests of others for whom the amicus curiae is competent to speak.  On other occasions, an amicus curiae is one who can provide a court with specialized, often technical knowledge that illuminates the legal dispute by rendering more concrete the particular technology or industry or social sphere where a seemingly abstract legal debate has arisen. Such amici curiae are essentially teachers with regard to something extra-legal. And, as we all know, most teachers do their utmost to be friendly.
My guess is this: If you were to take a stack of briefs—all of which address the same legal issues, all of which are equally competent in terms of grammar, spelling, and syntax—and the stack included an equal smattering of briefs from both sides of the “v” and amici briefs, and you gave this stack to a collection of non-lawyers, overwhelmingly, the non-layers would find the amici briefs more appealing. I admit that my proposition has not exactly been subjected to rigorous empirical testing.  BUT if I am right about this, this fact would most certainly tell us something profound about the bounds of advocacy and the degree to which lawyers are perceived as inherently unfriendly.
For a while, “think on [that,] dear friend.” Then “[a]ll losses are restor'd and sorrows end.” [Sonnet 30]

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