PLDF Amicus Program: a Little-Used Appellate Luxury
In general, is it better to have two separate appellate briefs supporting your client’s or insurer’s position, or merely one? The answer is obvious. Yet the Professional Liability Defense Federation Amicus Program is insufficiently called upon by our
industry members for no-cost appellate help. We encourage our industry members to take a second look at the benefits the program offers, and to call upon the membership for assistance (PDF). Here is the background.
Appellate courts routinely
give permission for industry, professional and other groups to submit appellate briefs that address broader or transcendent issues going beyond the facts of the case on appeal. Termed Amicus Curiae briefs (Latin for “friend of the court”), the focus
of the argument in the brief should address reasons supporting a party’s desired outcome based upon the larger issues. Amicus participation avoids the risk that decisions made by courts in a vacuum (i.e., application of the law to the mere facts of
the case on appeal) without consideration of the larger context may create unwanted jurisprudential ramifications.
Potential benefits to the party involved are obvious. The court will be able to consider: risks of unintended consequences
associated with the other side’s advocacy, policy issues raised by the parties’ advocacy, historical perspectives on the development of the law, and the effect on other persons or entities who are not parties to the action but whose interests could
be affected by the court’s ruling. All the while the amicus advocate is supporting the outcome advanced by the party’s advocate.
Professional liability claims present fertile ground for amicus assistance. Statutes of limitation triggers,
affidavit of merit technicalities, but-for and other causation nuances, scope of duty (e.g., privity), punitive damages, expert foundation, and myriad issues affecting specific professions, offer opportunities to have courts view the parties’ dispute
from the perspective of the particular profession’s participation in the development of the law.
It is no secret that attorneys must market their services through presence-building activities. Appearing as counsel for the Professional Liability
Defense Federation as amicus in a state or federal appellate court provides excellent published opinion publicity drawing attention to counsel’s professional negligence defense expertise. Law firm homepage and personal web-bio placement, and social
media exposure, spread the word about the amicus advocate’s talent, corroborated by respect shown for it by leading courts who invited counsel’s participation.
The clients, their risk managers and insurers, value amicus participation because
it improves the chance of a “win” in the case at bar, and potentially in future cases if the defense outcome sought is adopted and has wider applicability.
PLDF is proud of its amicus participation to date. See Frederick v. Wallerich,
907 N.W.2d 167 (Minn. 2018) (addressing whether multiple acts by the same lawyer trigger separate LPL claims); Villani v. Seibert, 639 Pa. 58, 159 A.3d 478 (2017) (ruling a statute allowing a cause of action for wrongful use of civil proceedings does
not infringe on the judiciary’s constitutional power); and Guzick v. Kimball, 869 N.W.2d 42 (Minn. 2015) (holding the plaintiff’s expert’s affidavit of merit was insufficient to establish proximate causation). Let’s add to the list.
When a request for amicus assistance (PDF) is received, the PLDF Amicus Committee will review the request and discuss whether the issue involved is one the federation as a whole should address. If so, PLDF members in the jurisdiction will be contacted
to learn if they are interested in serving as amicus counsel. An assignment requires the lawyers defending the claim to alert amicus counsel of the issues involved, where help is desired, deadlines, and other technical details necessary to perfect
the filing. Amicus counsel should not be expected to read the trial or motion hearing transcript, exhibits, etc. The task is to prepare a legal policy argument having a tie to the facts and law on appeal. PLDF can offer participating counsel a small
attorney’s fee plus printing and filing fees. Counsel should view the Amicus Program opportunity as a marketing, not fee generating, endeavor.
We urge our industry members to call upon PLDF for assistance with your appeals. Two are better
than one. And the return on labor for client, insurer, and counsel on PLDF amicus appeals, should be good.
