Comment Re: No. R-06-0013
The Arizona Association of Defense Counsel opposes the proposed rule change.
The Arizona Association of Defense Counsel is a non-profit organization that was established in 1965. The AADC is comprised of attorneys who practice primarily in the area of civil defense litigation. There are approximately 920 members in the AADC. More information on the organization may be found at http://azadc.org.
The AADC is dedicated to the education of its members and the judiciary and increasing community awareness of positive aspects of the legal profession. The goal of the AADC is to advance the legal profession for the betterment of Arizona attorneys and the public they serve. The AADC has filed amicus briefs in a number of cases presented to the Arizona Supreme Court. The AADC understands the need for individuals and organizations not parties to a case to participate by filing a brief as amicus curiae. Since territorial days, amicus briefs have been filed to present information as to how a decision one way or the other will affect others. Such briefs may also provide additional information or analysis beyond what is presented by the parties.
For the AADC, the process in deciding whether to participate as an amicus takes considerable time and effort. Once a case is brought to the attention of the AADC, sometimes by the parties, but often simply because of a published decision, the Board of Directors carefully considers, discusses, and evaluates the impact of the decision. Both the petition and response are reviewed, and at times, the underlying appellate briefs are also circulated. Board members express their views during monthly meetings and may also submit written memoranda for or against participating as an amicus. Thus, a decision is not made until a substantial amount of discussion and evaluation has occurred. Many times, no consensus is reached as to whether the AADC should participate or take a position. If a consensus is reached, a brief writer is then assigned to draft the brief. The brief may then be circulated for review by the Board if there are any specific issues remaining before it is filed. The AADC brief writer is not paid and receives no fee for drafting the brief. The AADC pays only for the costs of copying and sending out the completed brief. The brief writer typically must draft the brief after hours and on weekends because the brief is a project in addition to his or her normal client workload.
The proposed rule shortens the time for filing an amicus and, for an organization like the AADC, this will not allow sufficient time to consider whether to participate as an amicus and then for a brief writer to prepare and file a brief. This is especially true with memorandum decisions that are not immediately brought to the attention of the public.
Based on what has occurred in the past, once a response to a petition is filed, it may take anywhere from four to nine months after this for the case to be placed on the court’s agenda. As the rule reads now, Rule 16 allows an amicus brief to be filed at any point in time up until 40 days after the court’s order granting review.
The proposed rule changes now make a distinction between filing an amicus before a decision is made to grant a petition and after. The proposed change to 16(b)(2) will still provide 40 days (i.e., 10 days after supplemental briefing) after the court decides to grant a petition. The proposed change to 16(b)(1) does not allow enough time because it shortens the time to 21 days after the response is filed to file a brief in cases where the court has not decided whether to grant review. Indeed, the time before the court decides whether to grant review may be the most critical time for an amicus brief to be filed so that the importance of the case to others similarly or differently situated may be emphasized. Twenty-one days is not sufficient time for meaningful evaluation and participation. The AADC respectfully objects to the proposed change.
On behalf of the Arizona Association of Defense Counsel
Humphrey & Petersen
3861 E. Third Street
Tucson, Arizona 85716