Commentary: A “Friend” in the Trial Court? Yes

When lawyers hear “amicus brief,” most think immediately of appellate courts. The concept is familiar in high-profile appeals, when trade associations, advocacy groups, or other organizations submit briefs to help a court understand broader legal or policy implications. In that setting, the role of the “friend of the court” is well established.

What is less widely known is that amicus briefs can also appear in trial courts. The practice is far less common and operates without the clear procedural frameworks that govern appellate amicus filings. Yet in the right circumstances, a trial-level amicus brief can serve a useful and legitimate purpose: helping the court evaluate a legal issue that may have consequences extending well beyond the immediate dispute.

For many practitioners, this idea comes as a surprise. Trial courts are where records are created, evidence is introduced, and disputes are resolved through motions and trials. But modern litigation increasingly presents issues — statutory interpretation, regulatory frameworks, and industry-wide practices — that reach beyond the parties themselves. In those situations, a non-party with relevant expertise may be able to assist the court in understanding the broader context in which the dispute arises.

Why Trial Courts Sometimes Welcome Amicus Participation

Trial judges routinely confront complex legal questions. In sophisticated commercial litigation, for example, a ruling on a motion to dismiss or summary judgment may involve interpreting statutes that could affect entire industries or regulatory regimes. The parties will, of course, present arguments tailored to their own interests. But those arguments may not always capture the wider implications of a particular legal interpretation.

A carefully prepared amicus brief can sometimes fill that gap. By offering specialized knowledge or highlighting broader consequences of a ruling, an amicus may help the court reach a more informed decision. And because trial court rulings often shape the issues that later reach appellate courts, the framing of those issues at the trial level can matter significantly.

The Lack of Uniform Rules

Unlike appellate courts, which generally have detailed rules governing amicus participation, trial courts rarely provide formal guidance. Most courts rely on their inherent authority to permit or deny such filings. As a result, the process often varies from judge to judge.

A few jurisdictions provide clearer frameworks. The U.S. District Court for the District of Columbia, for example, has adopted Local Civil Rule 7(o), which addresses the filing of amicus briefs and incorporates elements of Federal Rule of Appellate Procedure 29. The rule requires a motion for leave and disclosure of the amicus’s interest, while leaving timing and other details to the presiding judge.

Similarly, the Commercial Division of the New York Supreme Court recently adopted Rule 23, expressly permitting amicus participation in appropriate cases. The rule reflects a recognition that complex commercial litigation frequently raises questions with implications beyond the parties before the court.

Also noteworthy is the approach of Judge Lee Rudofsky of the U.S. District Court for the Eastern District of Arkansas. In a standing order applicable to all civil cases on his docket, he encourages amicus participation and even created an incentive for younger lawyers by guaranteeing argument time if a junior attorney serves as the principal drafter of the brief.

Staying Within Proper Limits

An important limitation on trial-level amicus practice is that an amicus brief should not attempt to expand the evidentiary record. Trial courts resolve motions based on the record developed by the parties. A non-party submission that attempts to introduce new factual material risks undermining the integrity of that process.

Instead, the most effective trial-court amicus briefs focus on legal analysis, industry expertise, or broader policy implications. They provide context.

Another practical consideration is that even though amici typically support one side’s position, if an amicus participates too aggressively — particularly if oral argument is permitted — such participation by someone who has not “lived with the case” may create strategic complications rather than clarity.

A Developing Area of Practice

For most litigators, trial-court amicus briefs remain unfamiliar territory. The absence of uniform procedural rules contributes to that reality. Yet the examples emerging from jurisdictions such as the District of Columbia (D.D.C.), New York, and the Eastern District of Arkansas suggest that the practice may continue to evolve.

The underlying reason for trial-level amicus practice is straightforward. Because litigation increasingly involves complex statutory, regulatory, and commercial questions, courts sometimes benefit from perspectives beyond those offered by the parties. When used carefully and appropriately, amicus participation can provide that perspective without disrupting the adversarial process.

The key, as with many aspects of litigation, is restraint. A well-crafted trial-court amicus brief should assist the court, not burden it or merely repeat arguments. When that balance is achieved, a “friend of the court” can play a constructive role.

Tim Sansone joined Sandberg Phoenix in 2002 and leads the firm’s Appellate and Complex Litigation Team and is Chair of Professional Development.