What is a "Friend of the Court" Brief?

"Amicus curiae" is the Latin term. "Amicus" means "a friend." English cognates include"amicable" and "amity." "Curiae" means roughly "of a court." English cognates include "curator," a person who judges [as in a court] which items should be in an art gallery or museum. Much has been made in recent news about the "Curia" of the leader of the Roman Catholic Church, the Pope-- the Curia is his court as a king has a court.

More than one friend are "amici." Ordinarily the only people who can participate in a lawsuit are people that either want a court to act in some way or people who oppose a court's action in some way. In a suit over money, the only people who can ordinarily participate are the people who have submitted to the court's jurisdiction who either desire to get money from one or more other parties or who wish to keep their money from the other party.

Generally, particularly in appellate disputes, a court can give permission for one or more additional parties to file briefs in a case or even present oral argument.

Imagine that a dispute about a small amount of money depends on an interpretation of the United States Constitution. The plaintiff: Gimpel the Fool

represented by

Here is the defendant, Gervais Brooke-Hamster

represented by R.L Gumby, Esq., attorney at law.

Now, generally, when appellate courts decide cases, they not only rule on the dispute, but they make a rule to be followed that will be applied in all cases before them thereafter. Appellate justices are hardly ever experts on the distant, long-term effects of their rule-making-- especially as to specific industries, intellectual property or taxes. The court needs help to decide the case rightly, and, more importantly, to make good rules that won't pointlessly screw up the economy.

Shyster and Gumby, though, are clearly not the people for the job.  Commonly lobbyists keep track of the cases appearing before the high courts that could affect their interests, and advise their clients to petition the court for permission to act as amici curiae, and hire first-rate lawyers to add briefs to help explain the context of the dispute. There may even be rare instances in which one or more high court justice might ask a buddy or a well-recognized expert in a field to act as an amicus.

Criticism of amici and their briefs:

1. Amici often have vested interests and distort the litigation process. Trade associations and other businesses can fairly well count on their interests being considered in litigation, the public not so much.
2. In states like Texas in which justices are elected, trade associations and other businesses finance the campaigns of candidates who will likely support their interests once the candidates rise to the (higher) bench. Sometimes it seems to me that in such cases, amicus briefs just add insult to injury. This is not so much a problem in courts in which the judges do not face the voters later. Those judges need not fear serious harm for ruling against vested interests. As segregation died, white southerners wanted to impeach Earl Warren. Many federal judges ruled in favor of school integration, improving the conditions of prisons, even requiring that criminal convictions be overturned because peace officers just plainly ignored the civil rights of poor people, racial minorities, and nonconformists.
3. Sometimes one or more friends of the court will be closely allied to one of the parties and all the folks on one side of a matter, and the party desperately desires to cover more material in its brief than the word count allows. That party and one or more amici will connive so as to spread an overly long argument over all their briefs to beat the page count.

A Hard-Working Second-Career Appellate Lawyer and Courtroom Litigator Seeks Place Five

So far we've spoken about three of the Republicans seeking to replace the retiring Cheryl Johnson: Sid Harle, Steve Smith, and Brent Webster, which only leaves Scott Walker.

An honors graduate of Dallas Baptist University and a Baylor law grad., he was admitted to the bar in 1998. A born Texan, he claims that he comes from generations of conservatives, and has been a Republican all of his adult life.
He has had a first career that he doesn't mention in his campaign materials-- he was a swimming pool builder.

Walker describes his practice as one of civil defense, veterans’ disability, criminal litigation, and appellate advocacy. Walker claims over seventy appellate briefs and more than 40 first-chair trials in district courts across north Texas. He does not appear to have ever been a prosecutor.

Walker's a member of the Texas Bar College, has been married to the same woman for 41 years, and claims to be an evangelical Christian active in a Dallas-area church. He appears to be keeping up a busy practice during his candidacy, snatching spare minutes out of his day for politics. There may be better looking candidates in the race, but I give him the prize for best campaign photograph.

A Man of Many Parts, a Man for All Seasons, Heads to the CCA Hustings.

Richard Davis is the Republican challenging Judge Mike Keasler for Place Six on the Texas Court of Criminal Appeals is Richard Davis who ran for Place Four to succeed Paul Womack two years ago, only to get nosed out by Kevin Yeary. He tells me that he intends to run a more vigorous campaign than he did two years ago and so far has been endorsed by the Houston Police Officers Union. He says that he is a fan of this blog. An easygoing talker, with a sonorous, beautiful speaking voice, he practices general trial and appellate law in Burnet, Texas, near Austin. He has 32 years of experience. Graduating from Baylor law school started practicing law in Brownsville, then Waco, and then in Odessa before moving to the Austin area where he eventually ended up with the Burnet practice he has today. He was a special prosecutor, then acting Sherman County Attorney in Stratford in the panhandle and worked in Odessa in the Ector County District Attorney's office and then later in the County Attorney's office, and had an appointment as a special prosecutor when he was at the County Attorney's office. He has been a contract public defender in Burnet. Along with a Travis County Assistant District Attorney, Davis did a jury selection training for Baylor. He won a "Best Lawyer in Burnet" award in the local paper. He loves to hunt, but doesn't get as much chance to do it as he would like, and is married to a shy woman. He has recent practical experience on both sides of the docket, and, compared to the other Republican candidates is very much in touch with the challenges of small firm lawyers who make up the great bulk of the defense bar.

Hon. Mr. Chris Oldner Fights Being Bullied in Collin County, Where Politics Is Not Beanbag

"Politics ain't beanbag."- Finley Peter Dunne

Before I had started on this post, I had thought that I knew what the six biggest counties in Texas were:

1. Harris (Houston)
2. Dallas
3. Tarrant (Fort Worth)
4. Bexar (San Antonio)
5. Travis (Austin)

but I was wrong about the sixth. I thought it would have been El Paso County, but it appears to be Collin County (county seat McKinney, largest city Plano).

And so it is that two of the three of those seeing to take on the newly-turned-Democrat judge Larry Meyers on the Texas Court of Criminal Appeals are judges from the Collin County Courthouse: Messrs. Ray Wheless and Chris Oldner.

Once upon a time there were three friends: Chris Oldner,  Ken Paxton, and Ray Wheless. Oldner was the presiding judge of the 416th Judicial District Court in McKinney, and was the local administrative judge of the county. Paxton had been a state house member, was the state senator and had won the office of the Texas Attorney General in the last election, January 2015. Wheless was the presiding district judge of another Collin County court and Wheless's wife was presiding district judge of yet another Collin County Court. Oldner says that he had discussed running for higher office in 2012, and that Wheless had been supportive. Oldner ended up not running then. Oldner found Wheless running this cycle. Oldner said that Wheless told him that Wheless had already been running for a year by the time that Oldner decided to run. I would take it that the judges' meetings in McKinney are more formal than they used to be.

Paxton's people allege that Oldner is running a half-hearted campaign for a seat on the CCA because with Paxton's people against Oldner, Oldner would likely lose his bench in McKinney and that losing the CCA race would be a graceful exit. Oldner's campaign website is lame compared to his adversaries', and Oldner's campaigning appears leisurely compared to the Energizer Bunny of the Texas GOP, Wheless.

(A note about the EmpowerTexans.com website: I link to it to document the views of  Oldner's adversaries. I don't want to opine about what people think when they have posted on the internet exactly what they think. I want to show what they say, not to vouch for the truth of what they say-- c.f.  Texas Rule of Evidence 801(d)(2). A number of their characterizations of Oldner seem to me to be exaggerated, if not scurrilously unfounded, e.g., that Oldner is "unethical," that he "appears to have violated numerous ethics rules" in "orchestrating" the "outrageous" criminal indictment of . . . Paxton, Empower Texans's Tony McDonald cites the claims in Paxton's defense motions as facts without addressing the prosecution's responses, and nowhere do I see any discussion of the merits of the case against the AG. He makes much of a judicial ethics claim made against Oldner-- an unprepossessing document apparently made by a political ally of Paxton.  A link about a purported eight-year-old financial scandal goes to an anti-illegal-immigration Freedom of Information Act request form list.)

Paxton was indicted for securities fraud about seven months after he had risen to be the attorney general. The grand jury that indicted Paxton was called under the supervision of Oldner. A Texas state grand jury has 18 members, and four alternates. Grand jurors are generally called together to meet from time to time for meetings of a few hours scattered over three months. Oldner told me that for approximately the last five years he has only been choosing grand jurors by starting from a random list of panelists who would appear to be qualified to serve as grand jurors and alternates. The first 18 qualified and able would be the grand jury. The next four qualified and able would be the alternates, and that would be the end of the process. No gamesmanship, hardly any discretion about it.

In short, Oldner had only the very slightest influence on who was on his grand juries.

Other legal rules insulate grand jurors even more from the influence of presiding judges like Oldner.

Generally, grand jury proceedings are supposed to be secret. Although prosecutors help present the evidence, grand jury deliberations are done without any nonmembers present-- prosecutors are not there, presiding judges are absolutely not allowed in- no more than they are allowed to be in with the trial jury when the trial jury deliberates, even the grand jury's bailiff is outside the door, not inside, during deliberations. The grand juries approve and disapprove indictments. A person cannot be prosecuted for felonies and a few other crimes, if the grand jury does not indict, unless the person waives the right to be indicted.

There is no double jeopardy before a grand jury. A grand jury can be asked to reconsider a denial of an indictment, or a matter may be brought up again before another grand jury. A grand jury can investigate matters on its own initiative and can indict people law enforcement did not bring their attention to, even the prosecutors' office, one or more judges (even the judge presiding over the grand jury), even, say, the Attorney General of the State of Texas. This long explanation is to show how little direct influence a presiding judge can have over a grand jury.

In short, it is highly unlikely that Oldner, even if he had wanted to, could have "orchestrated" Paxton's indictment without his improper involvement being immediately, scandalously manifest, which it was not.

Oldner recused himself when Paxton reported for booking. And Paxton's been re-indicted anyway. From here, it is hard to see a foul, hard to see any harm.

Oldner says he's never been reversed on appeal. If true, that is an achievement to be proud of. He does not appear to have ever been a defense lawyer.

As for the substantively bad claims made about him, I think he was just in the wrong place in the wrong time when the Texas Attorney General wanted everybody to know that you don't tug on Superman's cape; you don't spit into the wind; you don't pull the mask off the old Lone Ranger; and you don't mess around with Ken.

Brent Webster- Smart, Charming, Running Hard to Be the Republican Nominee to Replace Cheryl Johnson

As candidates for the Texas Court of Criminal Appeals go, he's young and he's fresh, he's Brent Webster, an assistant district attorney from Williamson County, running against Sid Harle for the Republican nomination for the seat left vacant by the leaving of Cheryl Johnson.

Born in Houston, he grew up in the Cypress-Fairbanks area there. His high school speech coach, Walter Willis, went to high school with me, and now works near me in The Woodlands in Montgomery County. He testified that Mr. Webster was an extremely memorable and talented student. After high school, Mr. Webster went to Southwestern University in Georgetown, Texas where he met the lady sharing the photo with him above, Amanda Webster, with whom he has three children, the youngest seven months old. A UH Law grad, he got his first job in the Williamson County Attorney's Office. Apparently Ms. Webster's parents live near Round Rock, and, this, Mr. Webster says, is why he started there. After five years as an assistant county attorney, he joined the D.A.'s office. A child when Michael Morton's case went down, his main professional memory of the thing was John Bradley's struggle against DNA testing for Morton. An admirer of Justice Antonin Scalia, Mr. Webster speaks well of his conservative, but protective of defendants' rights, decisions.

He does not appear to have ever run before for public office

Mr. Webster appears to have answered a question of a San Antonio newspaper editorial board with a reference to Mr. Webster's duty as a Christian to defendants before the court. I have seen a photo of Mr. Webster helping to lead children's church at the Crossroads Church in Austin-- I think he meant Crossroads Community Church, but it might be another. The first word in the first subhead of his web page is "faith." When I spoke to him on the phone, I did not get the smarmy, itchy feeling I get from some political candidates. Some political actors appear to have compartmentalized their religion and their actions in the world. Their religion only informs their actions in that the past was better was better than the present and that, therefore, oppressing women, homosexuals, racial or ethnic minorities, brutalizing the poor, and not observing limits on killing our adversaries in war, indeed killing our enemies preemptively are signs of the True Faith.  I heard him neither say nor hint at anything immoral or unethical. He may be like many people-- even most people-- who cannot distinguish morality from religious faith. A person would have to have a very narrow acquaintance for the only good people a person would know is a member of their own religious sect.

This leaves three possibilities for Mr. Webster:

1. That he is a naif-- that he is speaking awkwardly about his morality, using religious language when he need not.
2. That he is a person of faith whose morality arises in the context of his faith. What is needful for people to be productive and moral in our work and in the public sphere is much more common for people than what is needful for people in their inner lives to have right relation to the Divine. That he would think that he came to his understanding of justice through protestant Christianity, that justice is justice whether it come from a protestant Christian, a Catholic Christian, a Jew, a Buddhist, a nonreligious person, even a Hindu or Muslim.
3. That his campaign ad copy and photographs are dog whistles for the Christian base of Texas Republican primary voters.

I tend to believe, and I am not alone in tending to believe that Williamson County is not fastidious about following rules and common court practices intended to protect the rights of defendants. Mr. Webster suggested that he and his friends in similar positions in the Travis County District Attorney's Office which has a much better reputation, compared the felony plea bargains they made with their respective defendants and that they turned out to be similar-- for whatever that's worth. 

He said that he thought that the Texas Court of Criminal Appeals should not be a retirement court, that he reforms in mind to streamline processes there. He said that he supported working to sentence not necessarily longer, but smarter, and that he thought that non-violent offenders get overly long incarcerations in Texas (that might not mean shorter sentences, parole changes, etc., could be made).

I have no reason to think that he has any experience as a defense counsel at all.

He appears to be a hard-working, smart, charming, energetic fellow. If he fails to win, he will certainly be a person to watch for the future.

Federal Appeals Courts with Strange Names and Jurisdictions

There are thirteen federal appeals courts in the United States of America. Eleven of them are numbered.

First Circuit- Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

Second Circuit- 

Connecticut, New York, and Vermont.

Third Circuit- Delaware, New Jersey, Pennsylvania, and Virgin Islands.

Fourth Circuit-Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Fifth Circuit- Louisiana, Mississippi, and Texas.

Sixth Circuit- Kentucky, Michigan, Ohio, and Tennessee.

Seventh Circuit- Illinois, Indiana, and Wisconsin.

Eighth Circuit- Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Ninth Circuit- Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, and Hawaii.

Tenth Circuit- Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Eleventh Circuit- Alabama, Florida, and Georgia.

One of the others is the court of appeals for the District of Columbia. It covers the smallest geographical area of them all: 61 square miles. It's certainly the area with the most federal litigation. the appellate jurisdiction over the district courts of Washington City.

There is a court of appeals for the armed forces to review courts-martial.

Another unnumbered court of appeals covers the largest geographical area-- pretty much the full range of America's territorial jurisdiction.

The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction--

• of an appeal from a final decision of a district court  in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim arising under, any Act of Congress relating to patents or plant variety protection;
• certain tax judgments;
• of an appeal from a final decision of the United States Court of Federal Claims;
• of an appeal from a decision of--
• the Patent Trial and Appeal Board of the United States Patent and Trademark Office with respect to certain patent applications, derivation proceeding, reexamination, post-grant review, or inter partes reviews;
• the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings or
• a district court as to which a patent case was directed pursuant to certain statutes;
• of an appeal from a final decision of the United States Court of International Trade;
• to review the final determinations of the United States International Trade Commission relating to certain unfair practices in import trade;to review, by appeal on questions of law only, findings of the Secretary of Commerce under U.S. note 6 to subchapter X of chapter 98 of the Harmonized Tariff Schedule of the United States (relating to importation of instruments or apparatus);
• of an appeal under section 71 of the Plant Variety Protection Act (7 U.S.C. 2461);
• of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5;
• of an appeal from a final decision of an agency board of contract appeals pursuant to section 7107(a)(1) of title 41;
• of an appeal under section 211 of the Economic Stabilization Act of 1970;
• of an appeal under section 5 of the Emergency Petroleum Allocation Act of 1973;
• of a appeal under section 506(c) of the Natural Gas Policy Act of 1978; and
• of an appeal under section 523 of the Energy Policy and Conservation Act.
• any final decision rendered by a board of contract appeals pursuant to the terms of any contract with the United States awarded by that department or agency which the head of such department or agency has concluded is not entitled to finality pursuant to the review standards specified in section 7107(b) of title 41. The head of each executive department or agency shall make any referral under this section within one hundred and twenty days after the receipt of a copy of the final appeal decision.

These are pretty well the federal forums for appellate lawyers.

R.I.P. Joe Jamail

"At the end of trial Thursday, Ferguson got in a shouting match with a young attorney on the defense team who stood up in the gallery and accused him of misstating the record. After Judge Floyd recessed and left the courtroom, the attorney stepped forward. Jamail got in his face. “You’re not lead counsel, so you sit your ass down!” Barger moved between them. “Darrell, you tell him to shut his ass up or I’ll kick the s--t out of him!” Without blinking, the young attorney returned to the gallery.

Afterward, outside the courthouse, Edwards apologized.

'Who the f--- was he?” demanded Jamail.

'One of our appellate attorneys.'

'He looked like a f---ing appellate attorney,' said Jamail."

- See more at: http://www.texasmonthly.com/the-culture/the-greatest-lawyer-who-ever-lived/#sthash.dM3REBMl.dpuf

Except for that lawyer he lost to in his second trial, which was in Fort Worth, the only lawyers who ever every seriously messed with him were bankruptcy and appellate lawyers.

Last in his class at UT Law, Jamail won what was the largest monetary judgment in history at that time. When Percy Foreman had a disciplinary dispute with the State Bar, he hired a very, very young lawyer to represent him-- you guessed it-- Joe Jamail. 

Joe had only one marriage which ended only at his wife's death. I can't find the quote, but he said something like Lee's the one who loved him when he didn't have any money.

H/t to Mike Higgins