A Typical Motion for Leave to File an Amicus Curiae Brief
Notes on the Motion for Leave to File an Amicus Curiae Brief:
Unless the appellate court requests a brief, an amicus curiae may only file a brief by leave of the court. N.C. R. App. P. 28(i). The Motion for Leave to File an Amicus Curiae Brief should concisely state "the nature of amicus curiae's interest, the reasons why the brief is desirable, the issues of law to be addressed in the brief, and the position of amicus curiae on those issues." N.C. R. App. P. 28(i)(1). Prior to March 2018, an amicus curiae had the option to file the Motion for Leave to File an Amicus Curiae Brief first, with the proposed brief to be filed later. See2 March 2018 Order Amending Rules 28, 29, and 33.1 of the North Carolina Rules of Appellate Procedure. However, now, Rule 28(i)(2) states that "[t]he motion must be accompanied by amicus curiae's brief." "When amicus curiae files its motion and brief, it must serve a copy of its motion and brief on all parties to the appeal." N.C. R. App. P. 28(i)(4). Rule 28(i)(3) dictates the time for filing an amicus curiae brief and motion as follows:o If the amicus curiae brief is in support of a party to the appeal, then amicus curiae shall file its motion and brief within the time allowed for filing that party's principal brief.
o If amicus curiae's brief does not support either party, then amicus curiae shall file its motion and proposed brief within the time allowed for filing appellee's principal brief.
Within 30 days after having been served with the amicus curia brief, the parties may submit response briefs to an amicus curiae brief, but the response must be "limited to a concise rebuttal of arguments set out in the amicus curiae brief and shall not reiterate or rebut arguments set forth in the party's principal brief." N.C. R. App. P. 28(i)(6). It is also helpful for an amicus curiae to describe the positions of the parties with respect to the issue(s) of law to be addressed. The best practice is for a potential amicus curiae to obtain consent of the party whose position it seeks to support. Remember that per the November 2020 Amendments, Rule 37(c) now requires that appellate motions in all cases, except for appeals involving pro se litigants, document: (1) "counsel's good-faith effort to inform counsel for all other parties of the intended filing of the motion," (2) "whether the other parties consent to the relief being sought," and (3) "whether any other party intends to file a response." N.C. R. App. P. 37(c).No. COA17-123 TWENTY-FOURTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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[Plaintiff's Name as in Final Judgment or Order on Appeal], | From Avery County |
Plaintiff, | |
v. | |
[Defendant's Name as in Final Judgment or Order on Appeal], | |
Defendant. |
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MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
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TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
The North Carolina Association of Lawyers ("NCAL") hereby requests leave, pursuant to Rule 28(i) of the North Carolina Rules of Appellate Procedure, to file an amicus curiae brief in support of Defendant-Appellant. The proposed brief is filed contemporaneously with this motion.
INTEREST OF NCAL AS AMICUS CURIAE
The NCAL is a not-for-profit organization of attorneys. It has a substantial interest in ensuring that [describe the interest of the amicus curiae].
REASONS WHY AN AMICUS CURIAE BRIEF IS DESIRABLE
Defendant seeks to avoid her obligations under a binding agreement. In addition to reviewing the case law from North Carolina and other jurisdictions, the NCAL will demonstrate why [explain why an amicus curiae brief is desirable].
ISSUE OF LAW TO BE ADDRESSED
The NCAL will address the following issue of law: [describe the issue of law to be addressed].
POSITION OF AMICUS CURIAE
It is the position of the NCAL that [describe the position of the amicus curiae].
APPELLATE RULE 37(c) CERTIFICATION
Pursuant to Appellate Rule 37(c), NCAL certifies that all counsel of record were notified of NCAL's intent to file this Motion for Leave to File Amicus Curiae Brief. Plaintiff has no objection and does not intend to file a response. However, Defendant objects to NCAL's Motion and intends to file a response.
CONCLUSION
For the foregoing reasons, the NCAL respectfully requests that the Court grant it leave to file an amicus curiae brief in support of PlaintiffAppellant.
Respectfully submitted, this ____ day of _______, 2023.
[LAW FIRM NAME, if any]
______________________
[Name of Amicus Curiae or Counsel for Amicus Curiae, if any]
[Counsel for Amicus Curiae]
160 N. Main Street
Newland, NC 28786
(828) 456-1245
State Bar No. 12345
lawyer@lawfirm.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF has been served this day by e-mail, addressed as follows:
[Names and e-mail addresses of counsel for all parties]
This the ____ day of ________, 2023.
[Name of Amicus Curiae or Counsel for Amicus Curiae, if any]