May it please the court: A primer on how the NJSBA amicus program works

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Editor’s note: This article is reprinted with permission from the Feb. 20, 2017 edition of the Bar Report from the New Jersey Law Journal

   
The NJSBA sometimes acts as amicus curiae in pending cases before New Jersey and federal courts. Most of the time, this takes place in state court when these cases reach the Supreme Court level. However, the association does sometimes seek involvement when cases go to the U.S. Courts of Appeal and U.S. Supreme Court, such as in Ekaterina Schoenefeld v. State of New York, involving the bona fide office rule that is now at the certification stage in Washington, D.C.
   
The association’s
amicus activity runs the gamut of issues, from driving while intoxicated cases to those involving the Law Against Discrimination and voir dire issues to matters that raise questions about alimony and others that focus on statutes of limitation and the role of recall judges in New Jersey courts. Each year, it gets involved in roughly a dozen cases.
   
The underlying theme of each case in which the NJSBA decides to seek
amicus status is that it contains broad policy implications that could impact attorneys, their practices and their clients.
   
“NJSBA members’ fingerprints can be seen on many high-profile matters that will impact state law and legal interpretations for years to come.…It is a role we cherish, especially in those instances where the Court reaches out to the association and invites participation in a matter,” NJSBA President Thomas H. Prol has said about the
amicus program.
   
How does the NJSBA receive requests to get involved as a friend-of-the-court in a case?
 
Amicus requests usually come from NJSBA sections, but sometimes come from individual members. 
   
Can an individual NJSBA member make suggestions about which cases deserve amicus attention? 
Yes. NJSBA members who wish to bring a possible amicus issue to the NJSBA's attention can download the Amicus Request Form from njsba.com.
   
What is the review process for amicus requests?
Each request is reviewed by the Amicus Committee. The committee reviews each brief in a case and typically holds a lengthy discussion about the pros and cons of an argument before making a recommendation. The committee’s decision is then shared with the NJSBA Board of Trustees, which discusses the issues at hand and votes to determine whether the state bar will seek to join a matter and exactly what tact it should take in its advocacy. If there is a time constraint that cannot be avoided, the NJSBA Executive Committee will vote on whether to get involved.
   
Are sections and committee that could offer guidance ever consulted?
Absolutely. The expertise of sections and committees that speak directly to the issues in the case is often sought. The NJSBA has been fortunate in having members with outstanding expertise and ability prepare the necessary briefs and oral arguments, on a completely pro bono basis.
   
How is it determined who will write the brief?
The NJSBA president has the sole authority to designate an individual to draft any brief on behalf of the association. Often, the president will tap interested individuals from relevant sections or committee with appropriate subject-matter expertise to research and write briefs.
   
Does the NJSBA ever appear at arguments?
When the court determines that the NJSBA’s position should be a part of the oral argument schedule, then the association works with its members to figure out who is best to appear in court. It is always the prerogative of the president to assign that duty.
   
What is the NJSBA’s record on amicus activity?
Since its inception, the NJSBA has been zealous in the important work of providing assistance and insight as a friend of the courts. During that time, it has left an indelible mark on the state’s law books, impacting and changing New Jersey jurisprudence for the better. The NJSBA has a vibrant and active record of standing up and speaking out in cases that affect the state bar mission, and we proudly promote access to justice, stake out a fiercely protective role for the sacrosanct attorney-client privilege, and safeguard judicial independence as a prime directive.
The NJSBA is proud that its advocacy has provided the state and federal courts of this state guidance on a wide range of issues. To be certain, the association’s position has been upheld a number of times, including the Court’s recent unanimous decision that agreed with the NJSBA’s argument in Sergio Rodriguez v. Raymours Furniture, holding that a private agreement that contractually shortens the statute of limitations for a Law Against Discrimination (LAD) claim frustrates the purpose of the LAD and is, therefore, unenforceable. The NJSBA argued in support of the plaintiff’s access to justice rights, supporting his right to have his claims heard by the Court. Moreover, the NJSBA argued that the contract at issue was one of adhesion, and that it unreasonably and unconscionably curtailed a citizen’s rights to access the courts.
Sometimes the Court does not align itself with the NJSBA position. One example is Peter Innes v. Marzano-Lesnevich, in which the NJSBA did not agree with the Court’s determination that attorneys may be held liable for counsel fees if, as trustees and escrow agents, they intentionally breached their fiduciary obligation. However, the association is continuing to advocate for reform of professional malpractice statutes in the Legislature, and will redouble its efforts to achieve a legislative solution to the situation.
   
Are the NJSBA’s amicus briefs available for review? 
The association has a rich library of amicus briefs. To obtain a copy of an amicus brief or to pass on questions or comments about any amicus issue, send an email to Association Assistant Executive Director and General Counsel Sharon A. Balsamo at [email protected] 
All of the briefs are also available at njsba.com, under the “Advocacy” section. 

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