Legally Yours: Establishing and Leveraging Your Role as a ‘Friend of the Court’

by Blattel Communications
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[co-author: *Jason P. Steed]

The following article appeared in the fall 2015 edition of the Public Relations Society of America’s (PRSA) magazine The Public Relations Strategist.

While the legal profession and public relations may appear at first glance to be two disciplines with little overlap, in fact the opposite is true. Lawyers and PR professionals are both advocates trusted to champion the interests of clients. The difference is in the methods employed. And though a PR professional will never represent a client in court, he or she can pair with an attorney or legal department to develop, file and publicize an amicus brief, which can help to advance a client’s interests both in and out of court.

Taking sides in the case

Generally, litigation involves two “parties” fighting over a legal question. Did the company breach the contract or not? Did the driver cause the accident or not? Do same-sex couples have the right to marry or not?

Sometimes cases involve legal questions of interest to others who are not parties. For example, while a lawsuit over a breach of contract might not matter to anyone other than the two parties to the contract, a lawsuit over the constitutional right for same-sex couples to marry is of great importance to many individuals, organizations and corporations who are not parties to the lawsuit. Entities that are not directly involved in a lawsuit can formally express their opinions on a legal issue by filing an amicus brief.

Amicus curiae is Latin for “friend of the court.” Amicus briefs tell the court whatever an individual, organization or corporation thinks the court needs to consider before it makes a decision. These briefs can usually be filed at any level of litigation, in either state court or federal court, but most commonly at the appellate level and most prominently at the U.S. Supreme Court.

Typically, an amicus takes a side in the case. For example, in a lawsuit over a product that injured a consumer, organizations seeking to protect business interests might file an amicus brief supporting the manufacturer’s position, while organizations seeking to protect consumer interests might file an amicus brief supporting the injured person’s position. Similarly, in a case involving the free-speech rights of an individual who posted a tirade online, Internet service providers and other Web-based companies might file briefs telling the court which way they think the case should go.

In addition, sometimes there are amici (plural of amicus) who choose not to take a side — they just want the court to have certain information or to consider something important that was not mentioned in the parties’ briefs.

Advocating for an outcome

Beyond advocating for a particular legal outcome, serving as a “friend of the court” can also be leveraged to establish an organization’s position and credibility on a key issue; to promote its executives or counsel as thought leaders on a topic; or to provide the backbone for a variety of PR tactics.

After several years of high-profile cases at the U.S. Supreme Court, today’s plugged-in and empowered news consumer is more aware of and interested in high-level court proceedings than ever before. With widespread social media use and advocacy groups able to sprout up overnight, well-crafted, accessible and visible amicus filings can serve as key advocacy tools.

Commissioning and filing an amicus brief in the right case can be an ideal jumping-off point for thought leadership activities on a given issue. Companies can promote their executives or counsel as thought leaders on a given topic and leverage the content across multiple vehicles.

Developing the messages

As an example of the messaging that can be developed through an amicus brief, consider the issue of the “supervisor” liability rule before the U.S. Supreme Court in 2013 in Vance v. Ball State.

In Vance, the court considered whether the definition of a “supervisor,” as it had been established in past decisions, applied to all individuals empowered by an employer to assign and supervise work — an expansive definition of the term — or was limited only to individuals who can assign and supervise work and who also can “hire, fire, demote, promote, transfer or discipline.” Clarity on this definition was needed in the context of a sexual harassment lawsuit.

Five different nonprofit organizations, working with colleges and universities across the nation — all of which would be directly impacted by the decision — came together to speak in one voice in an amicus brief filed at the Supreme Court.

While the brief argued specific points of law, the message from a PR perspective was fairly straightforward:

This is a critically important issue for the approximately 4,500 colleges and universities in the U.S. As argued in our brief, we strongly believe that a more narrow definition of “supervisor,” consistent with prior legal rulings, is wholly appropriate and enhances the ability of institutions of higher education to focus their scarce resources on the screening, training and monitoring of supervisors rather than on litigation.

The group’s message was reinforced with a press release and related outreach, positioning key members of the group as sources for comment on Vance. And the members’ role as amici was touted as a credential, making the spokespeople ideally suited to provide a higher-education perspective on the case.

Elements of the brief were also leveraged in opinion pieces aimed at various constituents, including the higher-education community, HR and legal professionals, and business audiences, who also stood to gain by supporting the narrower definition of a supervisor.

Further, the legal process itself provided many timely news pegs. The filing of the amicus brief, the closing of oral arguments and the ruling itself all offered opportunities to talk about the issues and the implications of the court’s decision.

Utilizing opportunities

The amicus brief is a powerful tool and an underutilized opportunity for PR professionals to work with attorneys and legal departments. These “friend of the court” filings are important not just for nonprofit and advocacy groups but also for for-profit corporations whose motivations are more economic than social. For instance, it was reported in the Huffington Post that 379 companies supported same-sex marriage in the recent U.S. Supreme Court matter Obergefell v. Hodges. For these companies, because they do business across multiple states and were consequently using different employment handbooks throughout their organizations, the decision was economically material.

According to NPR, there was a record 148 amicus briefs filed overall in Obergefell, a number that speaks to the public’s engagement with the court system. (The previous high-water mark was 136 briefs, filed in the 2013 Obamacare case.)

It’s also important to note that there is a specific process for filing amicus briefs, which is why it is important to work closely with legal counsel. In most courts, an amicus has to get the consent of the parties or the approval of the court before it can file its brief. And there might be a hard filing deadline.

PR professionals often groan when they’re advised to filter campaign elements through the legal department, but the two disciplines can and should collaborate on amicus briefs to ensure maximum exposure and to deepen working relationships.

As the PR role continues to evolve, it is essential that forward-thinking professionals look for new synergies. And sometimes old tradition-steeped ways offer opportunities and credibility that can enhance a multifaceted thought leadership campaign.

*Jason P. Steed is an appellate attorney at Bell Nunnally & Martin LLP in Dallas. 

Copyright 2015 by The Public Relations Strategist. Reprinted with permission from the Public Relations Society of America (PRSA.org)

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